I " (iarmii Ham i>rl|0fll Hihtary Cornell University Library KF 8984.B82 The law of instructions to juries :civil 3 1924 020 115 410 c^l Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020115410 THE LAW OF INSTRUCTIONS TO JURIES CIVIL AND CRIMINAL IN THE FORM OF RULES WITH COMMENTS AND ILLUSTRATIONS AND A COMPLETE COLLECTION OF JUDICIALLY APPROVED AND ANNOTATED FORMS EDWARD R.^ANSON of the Springfield (Illinois) Bar. INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS COPYKIGHT 1914 By THE BOBBS-MERRILL COMPANY PREFACE. This work presents and codifies the principles of the law of instructions and sets forth a great variety of approved precedents for use as models. The drawing of instructions to juries has become increasingly a science in itself. Judging from the vast number of cases in which instructions have been condemned as faulty and in which a reversal has been due to improper, misleading and inapplicable instructions, it may be said that a correct understanding of the underlying principles is a fundamental and imperative need. The practitioner, in preparing his instructions, should know that he is proceeding on the right theory. He should understand the method of construction, so that the charge to the jury will not only announce a sustainable proposition of law, but will satisfy all the requirements of a valid instruction. It is the purpose of this treatise to do just this. It is its pur- pose to show, by means of rules based upon adjudicated cases, what is exacted of counsel, so that he may avoid the pitfalls that beset his path. It is confidently believed that a rigid observance of such rules will keep him from error and will enable him to avert reversals. In submitting this series of rules, it is the 'author's design to indicate what should be done. The positive duty enjoined upon court and counsel is pointed out. By doing what should be done, the practitioner will naturally omit what should not be done. The forms of instructions herewith presented are such as have met with the favor and sanction of appellate tribunals. They are classified and arranged alphabetically as to subjects and with a due regard to the matter of proportion. While the forms here reproduced do not attempt, as in fact they could not, to provide for every possible contingency that might arise, they do cover many aspects and branches of the law and will be of practical service. iii IV PREFACE. All these instructions are literal copies of instructions that have been given in the course of trials of causes of action, and, there- after, have been approved by reviewing courts. They have not been subjected to editorial revision. They are precedents and in the best sense of the term, approved instructions. Their value is increased by annotation. Springfield, Illinois. Edward R. Branson, TABLE OF CONTENTS PART ONE. GENERAL RULES AND EXCEPTIONS. CHAPTER I. NATURE AND PURPOSE OF INSTRUCTIONS. Section 1. Definition. 2. Office of charge. 3. Law of the case. CHAPTER II. PROVINCE OF THE COURT AND THE JURY. Section 4. Relative functions of court and jury. 5. Function of court to outline issues and state theories and contentions of parties. 6. Function of court to determine legal principles applicable to case. 7. Function of court to construe papers and documents. 8. Function of court to determine competency and materiality of evidence. 9. Direction of verdict in civil cases. 10. Direction of verdict in criminal cases. 11. Summing up evidence by court. 12. Presumptions of fact for jury. 13. Hypothetical statement of facts. 14. Questions of fact and weight and sufficiency of evidence in criminal cases. 15. Assumption of facts. 16. Assumption of facts — Statement of issues and claims. 17. Assumption of facts — Established, uncontroverted or admitted facts. 18. Assumption of facts in criminal cases. 19. Weight of contradictory evidence for jury. 20. Disparaging comments on merits of case. 21. Comments and expressions of opinion on the evidence. 22. Comments and expressions of opinion as to preponderance of evidence. 23. Comments and expressions of opinion — Cases of contract and tort. 24. Comments and expressions of opinion — Criminal cases. VI TABLE OF CONTENTS. 25. Comments and expressions of opinion — Common law rule and rule in federal courts. 26. Weight of admissions of parties. 27. Weight of expert testimony. 28. Weight of circumstantial and negative evidence. 29. Credibility of witnesses for jury. 30. Credibility of witnesses — Corroborating or contradictory evidence. 31. Credibility of witnesses — Demeanor of witnesses. 3Z. Credibility of witnesses — Interested witnesses. 33. Credibility of witnesses in criminal cases. 34. Cautionary instructions. CHAPTER III. SUBJECT-MATTER. Section 35. Pertinency of instructions to issues and evidence. 36. Recapitulation of testimony. 37. Theories of case. 38. Theories of case in criminal prosecution. 39. Definition of terms. 40. Definition of terms in criminal cases. 41. Limitation of purpose of evidence. 42. Lower grade of offense. 43. Insanity of accused. 44. Reasonable doubt. 45. Good character of accused. 46. Circumstantial evidence. 47. Circumstantial evidence in criminal cases. 48. Positive and negative testimony. 49. Presumptions from flight. 50. Confessions in criminal cases. 51. Presumptions of innocence. 52. Credibility of witnesses. 53. Credibility of witnesses in criminal cases. 54. Failure of party to testify in his own behalf or call material witness. 55. Failure of defendant in criminal case to testify. 56. Alibi in criminal cases. 57. Instruction to disregard testimony erroneously received. 58. Special verdicts. CHAPTER IV. FORM AND ARRANGEMENT. Section 59. Importance of form and arrangement. 60. Written instructions. 61. Marking and signing instructions. TABLE OF CONTENTS. VU 62. Reading instructions to jury. 63. Clearness of expression. 64. Repetition of instructions. 65. Repetition of instructions in criminal cases. 66. Limitation on number of instructions. 67. Reference to pleadings for issues. 68. Reading from statutes. 69. Quotations from decisions. 70. Misleading instructions. 71. Contradictory instructions. 72. Undue prominence to particular features. 73. Undue prominence to matters of evidence. 74. Undue prominence in criminal cases. 75. Argumentative instructions. 76. Argumentative instructions in criminal cases. 77. Appeals to sympathy or prejudice. 78. Special findings. CHAPTER V. PERTINENCY. Section 79. Necessity that instructions should be pertinent. 80. Pertinency of instructions in criminal prosecutions. 81. Pertinency to pleadings. 82. Pertinency to averments in indictment. 83. Pertinency to evidence adduced. 84. Pertinency to evidence adduced in criminal prosecution. 85. Abstract instructions. 86. Abstract instructions in criminal prosecutions. 87. Ignoring issues. 88. Ignoring evidence, 89. Setting out evidence to support verdict. 90. Ignoring issues and evidence in criminal prosecutions. CHAPTER VI. interpretation and effect. Section 91. Construction with reference to issues, evidence and other instructions. 92. Construction of charge as an entirety. 93. Cure of erroneous instruction by correct instruction. 94. Cure of ambiguous instruction by another instruction. 95. Cure by withdrawal of erroneous instruction. Vlll TABLE OF CONTENTS. CHAPTER VII. REQUESTS. Section 96. Duty to make timely request and tender proper instructions. 97. Requests for instructions in criminal cases. 98. Requests where general charge indefinite or inadequate. 99. Necessity of clear expression in requested instruction. 100. Modification of requested instructions. 101. Refusal for errors in request. 102. Refusal where matter sufficiently covered by other instructions. 103. Refusal of inconsistent requests. CHAPTER VIII. EXCEPTIONS. Section 104. Clearness of statement of grounds of objection. 105. Timeliness of objections. 106. Particularity in statement of grounds of objection. 107. General exceptions to entire charge part of which is correct. 108. Waiver of objections and exceptions. PART TWO. FORMS OF INSTRUCTIONS. CHAPTER IX. ACCORD AND SATISFACTION. Section 109. Receipt of less amount than debt. 110. Mistake as to amount. 111. Settlement by check. 112. Settlement by note. CHAPTER X. ACCOUNT STATED. Section 113. Nature of account stated. 114. Formal requisites. TABLE OF CONTENTS. 1a lis. Acquiescence in account from lapse of time. 116. Acquiescence in account by silence. 117. Submission of claims of parties. CHAPTER XL ACCRETIONS. Section 118. Meaning of term. 119. Title to accretions. CHAPTER Xn. ADJOINING LANDOWNERS. Section 120. Ordinary care in making excavation. 121. Damages for injuries in construction of tunnel. CHAPTER Xni. ADVERSE POSSESSION. Section 122. Essentials of holding or occupancy. 123. What is meant by the running of the statute of limitations. 124. Failure of owner to protest. 125. Necessity that possession be hostile in its inception. 126. Character of inclosure. 127. Adverse possession as between husband and wife. 128. Effect of mistake as to boundary. 129. Necessity that plaintiff rely on strength of his own title. 130. Tacking possessions. 131. Effect of occupancy of portion of land. 132. Adverse possession of wild land. 133. Evidence that may be considered on question. 134. Presumption of rightful possession. 135. Burden of proof. CHAPTER XIV. AGENCY. Section 136. Holding one out as agent. 137. Implied and apparent authority of agent. 138. Authority pf agent for purchase of goods. 139. Admissions of agent. TABLE OF CONTENTS. 140. Notice to agent as notice to principal. 141. Liability to principal for exceeding authority. 142. Assignment of judgment by agent. CHAPTER XV. ALIENATION OF AFFECTIONS. Section 143. Acts of parents of wife. 144. Elements of damages recoverable. 145. Exemplary damages. CHAPTER XVI. ALTERATION OF INSTRUMENTS. Section 146. Insertion of official designation after signatures. 147. Erasure of indorsement on note. 148. Alteration of contracts — Guaranty. CHAPTER XVn. ANIMALS. Section 149. Injuries inflicted by vicious dog — Duty to keep animal confined. 150. Injuries inflicted by vicious dog — Scienter. 151. Collision with frightened team — Contributory negligence. 152. Trespass committed by cattle. 153. Fright of horse at caged animals. CHAPTER XVni. ASSAULT AND BATTERY CIVIL LIABILITY. Section 154. Assault defined — Self-defense. 155. Self-defense. 156. Assault committed in making unlawful arrest. 157. Assault committed by concurrent acts of two defendants. 158. Assault on female. CHAPTER XIX. ATTACHMENT AND GARNISHMENT. Section 159. Grounds of attachment. 160. Attachment to recover embezzled moneys. TABLE OF CONTENTS. XI 161. Wrongful attachment — Actual damages. 162. Wrongful attachment — Punitive damages. 163. Garnishment. 164. Garnishment — Right of garnishee to have offset CHAPTER XX. ATTORNEYS. Section 165. Contracts with attorneys. 166. Duty of good faith toward client. 167. Compromises and releases. 168. Compensation. 169. Compensation — Recovery of moneys advanced. 170. Privileged communications. CHAPTER XXI. AUTOMOBILES. Section 171. Right to use of highway. 172. Care in operation of machine — Speed. 173. Care in operation of machine — Care as to blind persons. 174. Frightening horses. 175. Ownership of machine. CHAPTER XXII. BAILMENTS. Section 176. Diligence in care of gratuitous bailment. 177. Negligent use of hired animals. 178. Hired machinery — Implied warranty. CHAPTER XXIII. BANKRUPTCY. Section 179. Meaning of "insolvency." 180. Burden of proof of insolvency. 181. Preferences, Xll TABLE OF CONTENTS, CHAPTER XXIV. BANKS AND BANKING. Section 182. Liability of persons operating bank. 183. Officer's knowledge of transactions. 184. Retention of funds to pay certified check. 185. Payment of draft. 186. Deposit of wife's money in husband's name. 187. Payment to husband on wife's certificate of deposit. 188. Guaranty of bank deposit. 189. Determination of question of insolvency. 190. Receiving deposits with knowledge of insolvency — Criminal prosecution. CHAPTER XXV. BILLS AND NOTES. Section 191. Execution of note — Ratification of signature. 192. Execution of note — Failure to read. 193. Execution of note — Genuineness of signature. 194. Consideration. 195. Consideration for guaranty. 196. Acceptance of guaranty. 197. Consideration — Extension of time for payment of note. 198. Parol agreements. 199. Promise of released indorser to pay. 200. Purchase-money notes. 201. Purchase-money notes — Farm implements. 202. Note to secure payment of check — Computation of interest. 203. Lost note. 204. Bona fide purchasers. 205. Bona fide purchasers — Proof of good faith. 206. Payment of note. CHAPTER XXVI. BOUNDARIES. .Section 207. Long acquiescence in division line — Mutual agreement between owners of land. 208. Government corners — Expert testimony. 209. Natural objects and artificial monuments. 210. Certain and uncertain natural objects. 211. High and low water mark. 212. High and low water mark — Land on seaboard. TABLE OF CONTENTS. XIU CHAPTER XXVII. BREACH OF PROMISE OF MARRIAGE. Section 213. Nature of liability. 214. Necessity of meeting of minds of parties to contract. 215. Immoral consideration. 216. Illicit relations between parties as justification for breach. 217. Plaintiff's character and reputation, 218. Defendant's character. 219. Effect of plaintiff's knowledge of facts that would prevent consumma- tion of marriage. 220. Evidence — Burden of proof. 221. Evidence — Consideration of surrounding circumstances. 222. Evidence — Effect of failure to introduce material witness. 223. Evidence — Sympathy for party. 224. Elements of damages. 225. Seduction in aggravation of damages. 226. Consideration of defendant's conduct, after refusal to carry out contract on question of damages. CHAPTER XXVIII. BRIDGES. Section 227. Duty to construct and maintain. 228. Duty to construct guard rails. 229. Constructive notice of unsafe condition. CHAPTER XXIX. BROKERS AND FACTORS. Section 230. Real estate agents' contracts. 231. Stock brokers' contracts. 232. Performance of contract by real .estate agent. 233. Readiness and ability of purchaser to comply with contract. 234. Duty to conduct sale' after purchaser found. 235. Compensation for broker's services. 236. Compensation where broker represents both parties. 237. Compensation where subagent procures consummation of transaction, 238. Right to commissions where terms of sale changed. 239. Liability of one or more for commission. 240. Evidence for consideration of jury. 241. Real estate agents — Termination of agency. 242. Factors and commission merchants. XIV TABLE OF CONTENTS. CHAPTER XXX. BUILDING CONTRACTS. Section 243. Changes in plans and specifications — Acceptance of labor and materials. 244. Compliance with contract. 245. Architect's acceptance — Failure or refusal to deliver certificate. 246. Bad faith on part of architect — Abandonment — Rescission. 247. Abandonment of work — Enlargement of contract with architect. 248. Liability for additional labor and material. 249. Abandonment of work — Recovery for part performance. 250. Cancelation of contract. 251. Rescission — Fraud or mi'stake — Burden of proof. 252. Liability where owner makes performance impossible. 253. Allowance of interest for delay in payment. 254. Damages for defective construction. CHAPTER XXXI. CARRIERS OF GOODS AND ANIMALS. Section 255. Duty to provide adequate supply of cars. 256. Duty to furnish safe cars for transportation of cattle. 257. Ownership as between consignor and consignee. 258. Failure to take proper care of livestock in course of transportation — Burden of proof. 259. Duty to furnish safe and sufficient stock pens. 260. Loss of shipment through act of God — Burden of proof. 261. Delay in transportation caused by a snow blockade. 262. Bills of lading — Presumption from possession. 263. Bills of lading — Acceptance of car. 264. !^ills of lading — Estoppel to deny receipt of car. 265. Bills of lading — Vessel's lien on cargo. 266. Liability of connecting carriers. 267. Lost baggage — Burden of proof. CHAPTER XXXn. CARRIERS OF PASSENGERS STEAM AND ELECTRIC RAILWAYS. Section 268. When relation commences — Prepayment of fare — Implied invitation. 269. Duty to receive persons as passengers — Intoxicated persons. 270. Duty to receive perons as passengers — Infirm persons. 271. Degree of care imposed on carrier. 272. Degree of care imposed on carrier — Obstructions on track. 273. Degree of care imposed on carrier — Collision with train on switch. TABLE OF CONTENTS. XV 274. Degree of care imposed on carrier — Derailment. 275. Degree of care imposed on carrier — Hidden defects. 276. Degree of care imposed on the passenger — Contributory negligence. 277. Injury by inevitable accident. 278. Care as to premises — Waiting-rooms. 279. Care as to premises — Crowds at stations. 280. Injuries to passengers boarding trains. 281. Injuries to passengers boarding trains — Suddenly starting train. 282. Injuries to passengers boarding trains — Contributory negligence. 283. Care in transportation — Injury in attempt to escape threatened wreck. 284. Contributory negligence in voluntarily going upon platform or passing into other cars. 285. Expulsion of passengers from train. 286. Occupying dangerous position on car. 287. Expulsion of passengers from trains — Arrest of passenger at conductor's order. 288. Injuries to passengers on mixed trains. 289. Assault on passenger by employes. 290. Injuries to alighting passengers. 291. Injuries to alighting passengers — Calling out station as invitation to alight. 292. Injuries to alighting passengers — Duty to render assistance. 293. Injuries to alighting passengers — Reasonable opportunity to alight in safety. 294. Injuries to alighting passengers — Suddenly starting car while passenger in act of alighting. 295. Injuries to alighting passengers — Effect of unauthorized signal to start. 296. Injuries to alighting passengers — Contributory negligence. 297. Injuries to alighting passengers — Jumping from train at direction of em- ployes. 298. Injury after leaving car. 299. Presumption of negligence in operation of cars. 300. Burden of proof of negligent operation. 301. Violation of ordinances as to stopping places for street cars. CHAPTER XXXIII. CAUTIONARY INSTRUCTIONS. Section 302. Instructions as law of the case. 303. How instructions are to be construed by jury. 304. Jury as judges of facts. 305. Jury as judges of law in jurisdictions allowing that practice. 306. Duty to base verdict on evidence adduced. 307. Right to disregard evidence believed to be untrue. 308. Duty to avoid speculations as to testimony. 309. Consideration to be given to remarks and arguments of counsel. XVI TABLE OF CONTENTS. 310. Duty to avoid prejudice against corporation as party. 311. Care to be given to consideration of testimony concerning the verbal statements of others. 312. Consideration of demands made in pleadings. 313. Duty to exert eiTorts to avoid disagreement. CHAPTER XXXIV. chattel mortgages. Section 314. Good faith in execution of chattel mortgage. 315. Conversion of chattels by mortgagee. 316. Determination of question whether mortgagee had reasonable grounds to feel insecure. 317. Application of payments on mortgage debt. 318. Comphance with conditions of foreclosure by posting notice. CHAPTER XXXV. COMPROMISE AND SETTLEMENT. Section 319. Essentials of settlement. 320. Conclusiveness of settlement. 321. Explanation of terms of receipt. 2)22. Fraud in procuring settlement. 323. Compromise as a defense. 324. Settlement without knowledge of attorney. CHAPTER XXXVI. CONTRACTS. Section 325. Meeting of minds. 326. Mental capacity to contract. 327. Consideration. 328. Performance of contract. 329. Breach of contract. 330. Breach of contract — Act of third person in persuading party to breach contract. 331. Abandonment of contract. 332. Abandonment of contract — Measure of damages. ZZ2>. Construction of contracts by jury. 334. Customs and usages in construction of contracts. 335. Contracts entered into by fraud. 336. Contracts not to enter into competitive business. 337. Implied contracts to pay for services. TABLE OF CONTENTS. XVll 338. Implied contract to pay board. 339. Contracts to make loan. 340. Contracts for exchange of property. 341. Contracts for water for crops. 342. Contracts for fruit trees. 343. Contracts of employment — Stage manager. 344. Burden of proof of contract. CHAPTER XXXVII. CONTRIBUTORY NEGLIGENCE. Section 345. Contributory negligence as defense. 346. Meaning of term "contributory negligence." 347. Contributory negligence presupposes negligence. 348. Duty to exercise ordinary care for one's own safety. 349. Duty to avoid consequences of negligence of another. 350. Necessity that contributory negligence be the proximate cause of injury. 351. Recovery notwithstanding contributory negligence — Humanitarian doc- trine. 352. Comparative negligence. 353. Imputed negligence. 354. Acts in emergencies. 355. Opportunity to escape from threatened danger. 356. Necessity for knowledge of danger. 357. Care -required of infants. 358. Care required of blind persons. 359. Care required of drunken persons. 360. Presumption of contributory negligence. 361. Burden of proof of contributory negligence. CHAPTER XXXVIII. CORPORATIONS. Section 362. Recovery of expenses of promotion. 363. False representations by promoters. 364. Notice of charter to subscribers. 365. Defenses to action for unpaid subscription. 366. Application of bonus given by citizens. 367. Corporate agents. 368. Paper executed by officers. 369. Sales to officers. 370. Payment for legal services rendered by officers. XVIU TABLE OF CONTENTS. CHAPTER XXXIX. CRIMINAL LAW GENERAL PRINCIPLES. Section 371. Alibi. 372. Intent. iTi. Malice. 374. Insanity. 375. Accomplices and accessories. 376. Presumption of innocence. in. Presumptions from ilight or attempts to escape. 378. Presumption from surrender of defendant to authorities. 379. Burden of proof. 380. Reasonable doubt. 381. Circumstantial evidence. 382. Good character of accused. 383. Testimony of defendant in his own behalf. 384. Admissions and confessions. 385. Testimony of witnesses before examining magistrates. 386. Resisting arrest. 387. Right to consider demeanor of witnesses. 388. Duty to reconcile evidence if possible. 389. Evidence of work of bloodhounds. 390. Finding of guilt against more than one defendant. CHAPTER XL. CRIMINAL LAW PARTICULAR OFFENSES AND CRIMES. Section 391. Abandonment of family 392. Abduction. 393. Abortion. 394. Adultery. 395. Assault and battery. 396. Bigamy. 397. Burglary. 398. Conspiracy. 399. Disturbing religious meetings. 400. Embezzlement. 401. Forgery. 402. Gaming. 403. Homicide. 404. Homicide — Manslaughter. 405. Homicide — Accidental killing. 406. Homicide — Cooling time.. 407. Homicide — Malice, TABLE OF CONTENTS. XIX 408. Homicide — Defenses — Irresistible impulse. 409. Homicide — Defenses — Intoxication. 410. Homicide — Defenses — Apprehension of great bodily harm. 411. Homicide — Defenses — Threats. 412. Homicide — Defenses — Self-defense. 413. Homicide — ^Verdict fixing punishment. 414. Larceny. 415. Larceny — Possession of stolen property by accused. 416. Liquor law violations. 417. Nuisances. 418. Prostitution. 419. Refusal of peace officers to perform their duties. 420. Rape. 421. Robbery. 422. Seduction. 423. Setting out fires. 424. Theatrical performances without license. CHAPTER XLI. DAMAGES. Section 425. Nominal damages. 426. Actual or compensatory damages. 427. Exemplary damages. 428. Not necessary that any witness testify as to the amount of the damages. 429. Duty to disregard sympathy in making award. 430. Mortality tables. 431. Mitigation and aggravation of damages. 432. Prospective damages. 433. Damages accruing after suit filed. 434. Injuries to personal property. 435. Injuries to real property. 436. Collapse of building. 437. Breach of contract. 438. Market value of property. 439. Personal injuries. 440. Personal injuries — Injuries to infants. 441. Personal injuries — Pain and suffering and other elements. 442. Personal injuries — Loss of earning capacity. 443. Personal injuries — Loss of time and other elements. 444. Personal injuries — Permanency of injuries and other elements. 445. Personal injuries — Medical attendance and other elements. 446. Personal injuries — ^Disfigurement and other elements. 447. Personal injuries — Humiliation and other elements. 448. Personal injuries — Loss of wife's services. XX TABLE OF CONTENTS. CHAPTER XLII. DEATH BY WRONGFUL ACT. Section 449. Burden of proof of negligence. 450. Presumption of exercise of due care by deceased. 451. Contributory negligence. 452. Contributory negligence — Intoxication. 453. Damages. 454. Damages — Death of parent. 455. Damages — Death of husband and father. 456. Damages — Death of infant. 457. Damages — Annuity basis. 458. Damages — Destruction of earning powers. 459. Damages — Loss of pecuniary benefits by death of deceased. 460. Damages — Present worth of recovery. 461. Damages — Pain suffered by the injured person before death — Survival statutes. 462. Damages — Punitive damages. CHAPTER XLIII. decedents' ESTATES. Section 463. Claim against estate — Time of accrual. 464. Claims against estate — Attorneys' fees. 465. Claims against estate — Services rendered deceased in his lifetime. 466. Sufficiency of evidence to establish claim. CHAPTER XLIV. DEEDS. Section 467. Execution of deed. 468. Necessity of delivery. 469. Mental capacity to execute. 470. Breach of covenant of warranty. CHAPTER XLV. DRAMSHOPS CIVIL DAMAGE LAWS. Section 471. Injury to person, property or means of support. 472. Liability where sales made by different sellers. 473. Amount of liquor sold. 474. Sales to intoxicated persons. TABLE OF CONTENTS. XXI 475. Sales to habitual drunkards. 476. Necessity that intoxicants should be proximate cause of injuries com- plained of. 477. Not essential that injuries inflicted by drunken person should be maliciously inflicted. 478. Notice to dealer forbidding sales to drunkard. 479. Proof of time of sale. 480. Burden of proof. 481. Damages. 482. Damages — Expectancy tables. 483. Damages — Exemplary damages. CHAPTER XLVl. DRUGGISTS. Section 484. Negligence in filling order. 485. Damages for negligent filling of order. 486. Criminal liability for sale of dangerous drug. CHAPTER XLVII. EASEMENTS. Section 487. Dedication — Obstruction. 488. Abandonment of easement. CHAPTER XLVIII. ELECTRICITY. Section 489. General duty arising from dangerous nature. 490. Negligent insulation. 491. Injuries from fallen or dangling wires. 492. Injuries from lightning conducted over wires. 493. Liability where defective wiring installed by another than defendant 494. Contributory negligence of injured person. CHAPTER XLIX. elevators. Section 495. Care in operation and maintenance of elevator. 496. Sufficiency of guard at shaft. 497. Competency of operator. 498. Injuries on freight elevators. 499. Presumptive evidence of negligence. 500. Contributory negligence. 501. Right to assume comphance with law in operation and equipment. XXU TABLE OF CONTENTS. CHAPTER L. EMINENT DOMAIN. Section 502. General rules for determining amount of award. 503. Damages actual and not speculative. 504. Damages limited to those caused by proposed use. 505. Time to which valuation should relate. 506. Market value. 507. Benefits from improvement. 508. Damages and benefits to portions not taken. 509. Consideration of special uses to which land may be put. 510. Damages incident to use of property by condemner. 511. Damages for inconvenience resulting from location of road through land. 512. Farm crossings and fences. 513. Consideration of value of spring on land taken. 514. Condemnation of property for pest house. 515. View of premises by jury. 516. Right of jury to use own judgment and disregard evidence in determin- ing value. CHAPTER LI. EVIDENCE. Section 517. Burden of proof. 518. Circumstantial evidence. 519. Expert and opinion evidence. 520. Conflicting evidence. 521. Care in consideration of verbal statements. 522. Proof of identity. 523. Effect of failure to call material witness. 523a. Positive and negative testimony. CHAPTER LII. FALSE ARREST AND FALSE IMPRISONMENT. Section 524. What amounts to false imprisonment. 525. Probable cause — Malice. 526. Manner of arrest. 527. Arrest without warrant. 528. Arrest on void process. 529. Place of arrest. 530. Arrest by officers of railroad company. 531. Elements of damages. 532. Arrest by putting person in fear by threats. 533. Wrongful incarceration in lunatic asylum. Section 540. Ownership. TABLE OF CONTENTS. .XXIU CHAPTER LIII. FIRES. Section 534. Fires set out by threshing engine. 535. Fires set out by locomotives. 536. Fires set out by locomotives — Care as to spark arresters. 537. Fires set out by locomotives — Presumption of negligence. 538. Burden of proof of negligence in setting out fires. 539. Damages for destruction of property. CHAPTER LIV. FISH. CHAPTER LV. FRAUD. Section 541. What amounts to fraud. 542. Falsity of representation and reliance thereon by defrauded party. 543. Intention to defraud. 544. Knowledge that representation is false. 545. Misrepresentation by agent. 546. Negligence of defrauded party. 547. Fraudulent representations in sale of lands. 548. Fraud against city. 549. Sale of diseased animals. 550. Methods of proving fraud. 551. Burden of proof of fraud. 552. Damages recoverable for sale induced by fraud. CHAPTER LVI. FRAUDULENT CONVEYANCES. Section 553. Conveyances to relatives and intimates. 554. Conveyances between husband and wife. 555. Conveyances to creditors which hinder, delay or defraud other creditors. 556. Conveyances with reservations for the family of the debtor. 557. Intention. 558. Knowledge of fraud by grantee. 559. Transfers in the usual course of business. 560. Inadequacy of consideration, 561. Proof of fraud. XXIV TABLE OF CONTENTS. CHAPTER LVII. GAS. Section 562. Care in the conduct of the business. 563. Evidence of negligence. CHAPTER LVni. GIFTS. Section 564. Essentials of gifts inter vivos. 565. Gifts where confidential relation exists. 566. Mental condition of donor. 567. Burden of proof of validity of gift. CHAPTER LIX. HIGHWAYS. Section 568. Dedication for highway purposes. 569. Duty to place barriers at dangerous places. 570. Law of the road. 571. Care in the use of highway by traveler. 572. Excessive speed. 573. Contributory negligence of injured traveler. 574. Contributory negligence of traveler — Intoxication. 575. Care to be exercised by travelers under disability. 576. Use of highway by bicyclist. CHAPTER LX. HUSBAND AND WIFE. Section 577. Common-law marriage. 578. Separate maintenance. 579. Wife's liability for debts for benefit of her separate estate. 580. Liability of wife for debts of husband. 581. Wife as surety for husband. 582. Recovery for injuries to wife. CHAPTER LXI. INFANTS. Section 583. Ratification of contracts. 584. Evidence to show emancipation. TABLE OF CONTENTS. XXV CHAPTER LXII. INNS AND INNKEEPERS. Section 585. Loss of guest's effects. 586. Removal of disagreeable guests. CHAPTER LXni. Section 587. Fire 588. Fire 589. Fire 590. Fire 591. Fire 592. Fire 593. Fire 594. Fire 595. Fire 596. Fire 597. Fire 598. Fire .599. Fire 600. Fire 601. Life tion, 602. Life 603. Life 604. Life 605. Life INSURANCE. nsurance. nsurance — Property covered by policy. nsurance — Additional insurance. nsurance — Renewals. nsurance — Ownership of premises. nsurance — Alteration of premises. nsurance — Prohibited articles in insured building. nsurance — Explosion. nsurance — Destruction of property by incendiary. nsurance — Vacancy of premises. nsurance — Inventories. nsurance — Extent of loss. nsurance — Proofs of loss. nsurance — Transfer of policy. nsurance — Misrepresentations as to health of assured in applica- nsurance — Powers of agent as to application, nsurance — Prohibited occupations, nsurance — Excessive use of intoxicants by assured, nsurance — Suicide of assured. 606. Accident insurance. 607. Accident insurance — Injury through external, violent and accidental means. 608. Accident insurance — Visible marks. 609. Accident insurance — Violation of condition of policy. 610. Accident insurance — Extent of loss. 611. Fidelity and casualty insurance. 612. Marine insurance. CHAPTER LXIV. landlord and tenant.' Section 613. Execution of lease. 614. Farm leases. 615. Assignment of lease. XXvi TABLE OF CONTENTS. 616. Repairs on leased premises. 617. Payment of rental in services. 618. Eviction from premises. 619. Sale of leased premises by landlord. 620. Effect of destruction of leased premises. 621. Termination of lease. CHAPTER LXV. MALICIOUS PROSECUtlON. Section 622. Essentials of malicious prosecution. 623. Malice. 624. Responsibility for acts of agents. 625. Probable cause. 626. Advice of attorneys. 627. Effect of non-action by grand jury. 628. Elements of damages. 629. Exemplary damages. CHAPTER LXVI. MASTER AND SERVANT. Section 630. Continuance of -relation after close of work hours. 631. Implied contract of employment. 632. Breach of contract of employment. 633. Discharge of employe. 634. Duty of discharged employe to seek other employment. 635. Damages for discharge. 636. Degree of care to be exercised for safety of employes. 637. Care in the movement of engines and cars. 638. Inevitable accident. 639. Presumptions of negligence from happening of accident. 640. Duty of care toward employes of tender years. 641. Presumption of competency of infant employe. 642. Methods of work — Work about railroad trains. 643. Safety of appliances and places of work. 644. Safety of appliances and places of work — Presumption of performance of duty. 645. Safety of appliances and places of work — Knowledge of defect by master. 646. Safety of appliances and places of work — Duty of inspection. 647. Safety of appliances and places of work — Hidden defects. 648. Safety of appliances and places of work — Duty to safeguard machinery. 649. Safety of appliances and places of work — Insufficient lighting. 650. Safety of appliances and places of work — Passageways. TABLE OF CONTENTS. XXVU 651. Safety of appliances and places of work — Unruly work animals. 652. Safety of appliances and places of work — Railroad employment. 653. Duty to instruct and warn youthful and inexperienced workmen. 654. Duty to sound warnings to railroad employes at work on track. 655. Rules for government of employes. 656. Obedience to commands of superior. 657. Assumption of risk. 658. Assumption of risk — Master's negligence. 659. Assumption of risk — Obvious dangers. 660. Assumption of risk — Servant's knowledge of unsafe conditions. 661. Assumption of risk — Reliance on master's assurance of safety. 662. Assumption of risk — Work outside line of employment. 663. Fellow-servant doctrine. 664. Fellow-servant doctrine — Duty to employ capable and sufficient fellow servants. 665. Fellow-servant doctrine — Vice principals. 666. Fellow-servant doctrine — Rule applicable where injury received in a sister state. 667. Contributory negligence. 668. Contributory negligence — Disregard of warnings. 669. Contributory negligence — Reasonable diligence to be exercised by em- , ploye. 670. Contributory negligence — Presumption of the exercise of due care. 671. Contributory negligence — Care in escaping impending danger. 672. Contributory negligence — Care to observe dangers. 673. Contributory negligence — Encountering obvious dangers. 674. Contributory negligence — Discovered peril. 675. Contributory negligence — Railroad employes. 676. Conformity of proof to pleadings. 677. Negligence a question of fact. 678. Burden of proof. CHAPTER LXVII. MINES AND MINING. Section 679. Mine location under federal laws. 680. Superintendence of mining operations. CHAPTER LXVIII. MUNICIPALITIES. Section 681. Changes of street grades. 682. Duty to keep streets and sidewalks in safe condition. 683. Contributory negligence of travelers on streets. 6S4. Right of pedestrian to assume that travelers on street will use same legally. XXVIH TABLE OF CONTENTS. 685. Defective sidewalks. 686. Defective sidewalks — Nature of liability of city. 687. Defective sidewalks — Notice to city of dangerous condition. 688. Defective sidewalks — Hidden defects. 689. Defective sidewalks — Conformity of proof to allegations of pleading. 690. Defective sidewalks — Evidence of defects in vicinity of place where accident occurred. 691. Defective sidewalks — Aggravation of existing injury. 692. Defective sidewalks — Contributory negligence of traveler. 693. Defective sidewalks — Right of traveler to assume safety of sidewalk. 694: Snow and ice on sidewalks. 695. Snow and ice on sidewalks — Contributory negligence of traveler. 696. Temporary obstruction of sidewalks in course of repair. 697. Damages for injuries to travelers on streets and sidewalks. 698. Defective sewers. 699. Embankments obstructing flow of water. CHAPTER LXIX. NEGLIGENCE. Section 700. Negligence defined. 701. Injuries the result of mere accident. 702. Gross negligence — Wilful negligence. 703. Ordinary care. 704. Care to avoid injury to infants. 705. Joint negligence. 706. Proximate cause. 707. Care in respect to dangerous premises. 708. Dangerous excavations. 709. Dangerous machinery. 710. Recovery limited to negligence alleged in pleadings. 711. Sufficiency of evidence to establish negligence. 712. Duty of jury to take into consideration situation of parties. 713. Burden of proof. 714. Right of jury to disregard evidence contrary to physical facts. Section 715. What constitutes a nuisance. 716. Persons liable. 717. Defenses. 718. X)amages. 719. Criminal prosecutions. CHAPTER LXX. NUISANCE. TABLE OF CONTENTS. XXlX CHAPTER LXXI. officers. Section 720. Conversion of public funds. 721. Bribery. 722. Wrongful levy on property. CHAPTER LXXn. PARENT AND CHILD. Section 723. Duty of child to care for parent. 724. Right of parent to earnings of child. 725. Payment for services rendered parent by child. 726. Presumption of legitimacy of child. 727. Degree of care to be exercised by child. CHAPTER LXXni. PARTNERSHIP. Section 728. Partnership agreement. 729. Liability of silent partner. 730. Breach of agreement of sale of partnership business. 731. Business in which partnership may engage. 732. Transactions between decedent and firm of which plaintiff is member. 733. Replevin of partnership property. 734. Retirement of partner. 735. Dissolution. 736. Authority of partners after dissolution. CHAPTER LXXIV. PARTY WALLS. Section 737. Right to protect party wall. CHAPTER LXXV. PAYMENT. Section 738. Payment by note or due-bill. 739. Payment by check. 740. Establishment of payment by circumstantial evidence. 741. Presumption of payment from lapse of time. 742. Payment by third person. 743. Recovery back of payments. XXX TABLE OF CONTENTS. CHAPTER LXXVI. PHYSICIANS AND SURGEONS. Section 744. Duty to file diploma. 745. Contracts for sale of practice. 746. What constitutes employment of physician. 747. Care and skill to be exercised by physician or surgeon. 748. Care to be exercised by specialists. 749. Meaning of prescription. 750. Physician as expert witness. 751. Duty to call physician as witness. 752. U^e of X-ray machine. 753. Consent to operation. 754. Contributory negligence of patient. 755. Matters to be proved in action for malpractice. 756. Damages for malpractice. CHAPTER LXXVII. PLEDGES. Section 757. Notes held as collateral. 758. Pledge of corporate stock. 759. Ratification of sale of pledged property. CHAPTER LXXVin. PRINCIPAL AND SURETY. Section 760. Execution of bond without authority. 761. Extension as consideration. 762. Release of surety. Ibi. Wife as surety for husband. CHAPTER LXXIX. RAILROADS. Section 764. Construction of roadbeds so as to divert or interfere with drainage and flow of water. 765. Liability for injuries based on negligence. 766. Wilful negligence. 767. Care in operation of locomotive or train. 768. Presumption of negligent operation. 769. Proximate cause of injury. TABLE OF CONTENTS. XXXI 770. Speed of trains. 771. Duty to sound signals. 772. Duty to sound signals — Farm crossings. nZ. Duty to sound signals — Effect of knowledge of approach though no signals sounded. 774. Duty to maintain lookout on approaching train. 775. Duty to station flagmen at crossings. 776. Care toward children on track. m. Relative rights of public and railroad at crossings. 778. Relative rights of public and company on right of way. 779. Relative rights of public and company on tracks laid in streets. 780. Injuries at crossings. 781. Care in running trains at highway crossings. 782. Care in running trains at street crossings. 783. Violation of law in allowing cars, to block crossing. 784. Collisions with traction engines at crossings. 785. Care to be exercised at points where persons may be expected on tracks. 786. Injuries to trespassers on railroad premises. 787. Injuries to trespassers riding on engines. 788. Injuries to persons loading or unloading cars. 789. Injuries to persons at work on premises of others. 790. Injuries caused by escaping steam. 791. Frightening horses by operation of train. 792. Injuries from mail cranes. 793. Collision between trains at crossings. 794. Care after discovery of perilous position of person on track. 795. Right of engineer to assume that person on track will step aside in time to avoid injury. 796. Duty of engineer where signals not heard or heeded. 797. Contributory negligence of injured party. 798. Contributory negligence of parents. 799. Doctrine of last clear chance. 800. Doctrine of discovered peril. 801. Erroneous action of injured person placed in sudden peril. 802. Duty to stop, look and listen. 803. Duty to stop, look and listen — At what point duty to be performed. 804. Duty to stop, look and listen — View of crossing obstructed. 805. Reliance on signals of flagmen and crossing watchmen. 806. Reliance on safety gates. 807. Crossing between cars in motion. 808. Injuries in jumping on moving cars. 809. Presumption that person killed on track exercised due care. 810. Evidence as to distance in which train may be stopped. 811. Damages recoverable for personal injuries. 812. Killing animals. 813. Fences and cattle-guards. XXXU TABLE OF CONTENTS. CHAPTER LXXX. RELEASE. Section 814. Performance of conditions. 815. Conclusiveness of release. 816. Necessity that terms be understood by parties. 817. Validity as dependent on mental condition of releasor. 818. Fraudulent representations inducing execution. CHAPTER LXXXI. RELIGIOUS SOCIETIES. Section 819. Compensation for work performed for church. CHAPTER LXXXn. REPLEVIN. Section 820. Levy on property. 821. Ownership of property. 822. Matters to be proved. 823. Verdict. CHAPTER LXXXni. REQUESTS FOR INSTRUCTIONS. Section 824. Caption and form of request. CHAPTER LXXXIV. SALES OF GOODS. Section 825. Contract of- sale. 826. Delivery and acceptance. 827. Breach of contract. 828. Proof of performance of contract. 829. Warranty. 830. Implied warranty. 831. Proof of warranty. 832. Breach of warranty. 833. Damages for breach. TABLE OF CONTENTS. XXXIU CHAPTER LXXXV. SLANDER AND LIBEL. Section 834. Essentials of slander or libel. 835. Malice. 836. Privileged communications. 837. Justification. 838. Mercantile reports. 839. Charges of immorality. 840. Evidence to sustain charge. 841. Presumption of good character. 842. Jury as judges of law of libel. 843. Damages. 844. Criminal libel. CHAPTER LXXXVI. STREET RAILWAYS. Section 845. Duty to equip cars with fenders. 846. Duty to equip cars with efficient brakes. 847. Relative rights of parties on tracks. 848. Care to be exercised in operation of cars. 849. Duty of motorman to keep car under control. 850. Violation of ordinances. 851. Speed of cars. 852. Duty of motorman to keep lookout. SS3. Duty of motorman to signal. 854. Right of motorman to assume that traveler will leave track. 855. Right of motorman to assume that vehicle will not be driven in front of his car. 856. Care to be exercised after seeing person in perilous position. 857. Duty toward children. 858. Injuries to animals. 859. Care toward frightened horses. 860. Collision with runaway teams. 861. Care at railroad crossing. 862. Tracks above street grade. 863. Snow and ice on tracks. 864. Wanton injuries. 865. Presumption of negligence. 866. Burden of proof of negligence. 867. Contributory negligence. 868. Contributory negligence as proximate cause. 869. Imputed negligence of parents of children. 870. Doctrine of discovered peril. XXxiv TABLE OF CONTENTS. 871. Duty of traveler to look and listen. 872. Recklessly driving on track in front of approaching car. 873. Damages recoverable. CHAPTER LXXXVII. TELEGRAPH AND TELEPHONE COMPANIES. Section 874. Rights in highways. 875. Injuries to persons on highways. 876. Objects in highway which tend to frighten horses. 877. Injuries to property from defective wiring or insulation. 878. Duty to accept messages without discrimination. 879. Right to fix office hours for receipt and transmission of messages. 880. General duty of care in transmission or delivery of messages. 881. Taking message over telephone. 882. Erroneous transmission of message. 883. Breakdown of wires as excuse for delay in transmission. 884. Negligent delivery of messages. 885. Sufficiency of sendee's address. 886. Damages. 887. Damages — Exemplary damages. 888. Damages — Mental anguish. CHAPTER LXXXVni. THEATERS AND PLACES OF AMUSEMENT. Section 889. General duty of care. CHAPTER LXXXIX. VENDORS AND PURCHASERS OF LAND. Section 890. Acceptance of deed. 891. Good faith purchasers. 892. Rescission of contract of purchase. 893. Damages for breach of contract. 894. Methods of determining value of property. CHAPTER XC. VERDICTS. Section 895. Forms of verdicts. TABLE OF CONTENTS. XXXV CHAPTER XCI. WAREHOUSEMEN. Section 896. Warehouseman defined. 897. Care demanded of warehouseman. 898. Mixture of grain in storage. 899. Loss by fire. 900. Right to storage charges. 901. Lien for storage charges. CHAPTER XCII. WATERS. Section 902. Interference with percolating waters. 903. Springs. 904. Navigable waters. 905. Diversion of waters. 906. Obstruction of water courses. 907. Dams. 908. Removal of embankments. CHAPTER XCni. WHARVES. Section 909. Collapse of dock. CHAPTER XCIV. WILLS. Section 910. Execution of will. 911. Execution of will — Attestation. 912. Execution of will — Proof. 913. Evidence on question of genuineness. 914. Declarations of testamentary intentions. 915. Agreement to provide in will for payment of services. 916. Title taken by devisee. 917. Testamentary capacity — General rules for determining competency. 918. Testamentary capacity — Meaning of disposing mind and memory. 919. Testamentary capacity — Insanity. 920. Testamentary capacity — Delusions — Monomania. 921. Testamentary capacity — Eccentricities. 922. Testamentary capacity — Old age. 923. Testamentary capacity — Drunkenness. 924. Testamentary capacity — Presumptions and burden of proof. XXXVl TABLE OF CONTENTS. 925. Testamentary capacity— Evidence on question. 926. Undue influence — In what it consists. 927. Undue influence — Effect. 928. Undue influence — Persons occupying confidential relations. 929. Undue influence — Child over parent. 930. Undue influence — Physician over patient. 931. Undue influence — Attorney over client. 932. Undue influence — Over aged persons. 933. Undue influence — Presumptions and burden of proof. 934. Undue influence — Evidence on question. 935. Inequality of division among objects of testator's bounty. 936. Violation of natural justice in making distribution. 937. Forged wills — Burden of proof. CHAPTER XCV. WITNESSES. Section 938. Credibility of witnesses and weight of testimony exclusively for jury. 939. Interested witnesses. 940. Prejudiced witnesses. 941. Demeanor of witnesses. 942. Means of information. 943. Employes as witnesses. 944. Husband or wife as witnesses for each other. 945. Expert witnesses. 946. Attorneys as witnesses. 947. Colored persons as witnesses. 948. Detectives as witnesses. 949. Confessed thieves as witnesses. 950. Ex-convicts as witnesses. 951. Immunity to witness. 952. Dying declarations. 953. Impeachment of witnesses. 954. Effect of impeachment. 955. Disregard of unimpeached testimony. 956. Disregard of testimony false in part. 957. Variance between testimony in and out of court. 958. Duty to reconcile contradictory testimony. 959. Testimony of witness by deposition. THE LAW OF INSTRUCTIONS TO JURIES PART ONE. GENERAL RULES AND EXCEPTIONS. CHAPTER I. NATURE AND PURPOSE OF INSTRUCTIONS. Section Section 1. Definition. 2. Office of charge. 3. Law of the case. § 1. Definition. An instruction is an exposition of the principles of the law applicable to the case in its entirety, or to some branch or phase of the case, which it is the duty of the jury to apply in order to render si verdict establishing the rights of the parties in accordance with the facts proved.^ The term does not include the ordinary remarks and admoni- tions of the court to the jury during the course .of the trial.^ It has accordingly been decided that the character of instructions '■ Lehman v. Hawks, 121 Ind. 541, 23 upon the law applicable to the plead- N. E. 670; Hanson v. Kent &c. Paint ings and the evidence, so as to aid Co., 36 Okla. 583, 129 Pac. 7. In- the jury in reaching a correct verdict structions are directions as to the law under the evidence." Plumraer v. In- of the case, enabling the jury to bet- dianapolis Union R. Co. (Ind.), 104 ter understand their duty and to pre- N. E. 601. vent them from arriving at wrong ""Hinkley v. Horazdowsky, 133 111. conclusions. Butler v. Gill, 34 Okla. 360, 24 N. E. 421; McCormick v. 814, 127 Pac. 439. "Instructions are Ketchum, 48 Wis. 643, 4 N. W. 798. intended only to inform the jury I 1 — Branson's Inst. S 2 INSTRUCTIONS RULES. 2 does not attach to the direction of the court as to manner of re- turning a sealed verdict;' the manner of answering interroga- tories;* the form of the verdict to be returned;^ oral directions to the jury to find a verdict for one party or the other ;^ rulings as to the admission or exclusion of evidence ;^ a direction to the jury to disregard evidence unless its relevancy is afterward shown/ § 2. Office of charge. The office of a charge Is: First, to explain the issues; sec- ond, to notice the positions taken by the parties and suggest, so far as the case may require it, the principles of evidence and their application ; and, third, to declare what rule or rules of law will be applicable to any state of facts which may be found in the evidence.* It is another statement of the principle to say that the province of instructions from the court is "to inform the jury what the law is, connected with the case in hand, and show them how to apply it to the particular facts involved,"^" or to state to the jury the claims set up by the parties, as disclosed by the evidence, and instruct them upon the law applicable thereto,^^ or "to assist the jury in correctly applying the law to the facts of the case,"^'' or to lay before the jury correct principles of law applicable to the evidence in the case/^ The object sought in all cases is the enlightenment of the jury," and nothing should be given, in the way of instructions, that does not promote this object." It is ° McAllister v. Mount, 73 Ind. SS9. the legal principles which apply there- * Trenttnan v. Wiley, 85 Ind. 33. to and cover the facts proved or pre- "Bradway v. Waddell, 95 Ind. 17; sumed in the case. State v. Dodds, Herron v. State, 17 Ind. App. 161, 46 54 W. Va. 289. 46 S. E. 228. N. E. 54; Boggs V. United States, 10 "Morris v. Piatt, 32 Conn. 81; Okla. 424, 63 Pac. 969. State v. Levigne, 17 Nev. 435, 30 "Lehman v. Hawks, 121 Ind. 541, Pac. 1084. 23 N. E. 670. " Grout v. Michols, S3 Maine 383. 'Lawler v. McPheeters, 73 Ind. 577. "Sawyer v. Sauer, 10 Kans. 466. 'Stanley v. Sutherland, 54 Ind. 339. "First Nat. Bank v. Eitemiller, 14 ' Souvais V. Leavitt, 50 Mich. 108, IlL App. 22. IS N. W. 37. It is the object and pur- " State v. Stout, 49 Ohio St. 282, 30 pose of instructions to define for the N. E. 437. jury and to direct their attention to "Baxter v. People, 3 Gilm. (111.) 3 NATURE AND PURPOSE. § 3 the purpose of instructions to direct the conduct of the jurors in the controversy which they are called upon to decide, rather than to teach law to the jurors." § 3. Law of the case. The instructions are the law of the case, and it is the duty of the jury to follow them whether right or wrong." But courts will not ordinarily reverse for the failure of a jury to follow an erroneous instruction.^* There are cases, however, which hold that a verdict rendered in plain disregard of the in- structions of the court should be set aside without an examination of the instructions to determine whether they are correct or not." 381; Montag v. People, 141 III. 81, 30 N. E. 337; First Nat. Bank v. Eite- miller, 14 III. App. 22. "Lendberg v. Brotherton Iron Min. Co., 75 Mich. 84, 42 N. W. 795. "Jackson v. State, 118 Ga. 780, 45 S. E. 604; Driskill v. State, 7 Ind. 338; Mahoney v. Dankwart, 108 Iowa 321, 79 N. W. 134; Bowell v. Draper, 149 Iowa 725, 129 N. W. 54; Seevers V. Cleveland Coal Co. (Iowa), 138 N. W. 793; King v. Lincoln, 26 Mont. 157, 66 Pac. 836; Boyesen v. Heidel- brecht, 56 Nebr. 570, 76 N. W. 1089; Barton v. Shull, 62 Nebr. 570, 87 N. W. 322; State v. Wong Si Sam, 63 Ore. 266, 127 Pac. 683. Not error in a criminal case to instruct the jury that if the court erred in giving a principle of law, the responsibility does not rest with the jury, but it is their duty to accept the law as. given by the court. Holton v. State, 137 Ga. 86, 72 S. E. 949. " St. Louis &c. R. Co. V. Dooley, 77 Ark. 561, 92 S. W. 789; McNulta v. Ensch, 134 111. 46, 24 N. E. 631 ; West Chicago St. R. Co. v. Manning, 170 111. 417, 48 N. E. 958; Campbell v. Western Union Tel. Co., 74 S. Car. 300, 54 S. E. 571. "McAllister v. Rocky Fork Coal Co., 31 Mont. 359, 78 Pac. 595 ; Has- 1am V. Barge, 69 Nebr. 644, 96 N. W. 245. Ill Am. St. 577. CHAPTER II. PROVINCE OF THE COURT AND THE JURY. Section 20. Disparaging comments on merits of case. 21. Comments and expressions of opinion on the evidence. 22. Comments and expressions of opinion as to preponderance of evidence. 23. Comments and expressions of opinion — Cases of contract and tort. 24. Comments and expressions of opinion — Criminal cases. 25. Comments and expressions of opinion— Common-Iavir rule and rule in federal courts. 26. Weight of admissions of parties. 27. Weight of expert testimony. 28. Weight of circumstantial and neg- ative evidence. 29. Credibility of witnesses for jury. 30. Credibility of witnesses— Corrob- orating or contradictory evi- dence. 31. Credibility of witnesses — De- meanor of witnesses. 32. Credibility of witnesses — Inter- ested witnesses. 33. Credibility of witnesses in crim- inal cases. 34. Cautionary instructions. Section 4. Relative functions of court and jury. 5. Function of court to outline is- sues and state theories and con- tentions of parties. 6. Function of court to determine le- gal principles applicable to case. 7. Function of court to construe pa- pers and documents. 8. Function of court to determine competency and materiality of evidence. 9. Direction of verdict in civil cases. 10. Direction of verdict in criminal cases. 11. Summing up evidence by court. 12. Presumptions of fact for jury. 13. Hypothetical statement of facts. 14. Questions of fact and weight and sufficiency of evidence in crim- inal cases. 15. Assumption of facts. 16. Assumption of facts — Statement of issues and claims. 17. Assumption of facts — Estab- lished, uncontroverted or ad- mitted facts. 18. Assumption of facts in criminal cases. 19. Weight of contradictory evidence for jury. § 4. Relative functions of court and jury. The functions of the court and jury are distinct and each is supreme in its own domain. It is the exclusive province of the court to determine all questions of law arising in the progress of the case and upon the whole case after evidence and argument,^ and it is the equally exclusive province of the ^Thomason v. Odium, 31 Ala. 108, 68 Am. Dec. 1S9; Riley v. Riley, 36 4 5 PROVINCE OF COURT AND JURY. § 5 jury to determine all questions of fact in the case.- Hence an instruction or a request for an instruction which takes away from the court or jury a matter within its exclusive province amounts to an invasion and is erroneous.^ In the determination of questions of law and fact, the judge and jury are respectively independent and neither is allowed to invade the province of the other.* An exception to the foregoing rule as to the invasion of the province of the jury by the court, which is more apparent than real, occurs where the court directs a verdict for want of evidence. The question in such a case is really one of law, for it amounts to a determination that no ques- tion of fact has been presented for the jury to consider.^ This apparent exception occurs only where there is an entire lack of evidence, and not where there is some evidence which is contra- dicted and the determination of the question depends on the credibility of the witnesses. In this situation the question is solely for the jury.° § 5. Function of court to outline issues and state theories and contentions of parties. It is the exclusive function of the court to outline the issues made by the pleadings, and it is the duty of the jury to accept the court's interpretation of these issues.^ Under this principle, it is allowed the court to point out the Ala. 496; People v. Ivey, 49 Cal. 56; Pa. 169; Keen v. Monroe, 75 Va. Pennsylvania Co. v. Conlan, 101 111. 424. 93; Riley v. Watson, 18 Ind. 291; 'Mawick v. Elsey, 47 Mich. 10, 10 Myrick V. Wells, 52 Miss. 149; N. W. 57. Brady v. Clark, 12 Lea (Tenn.) = Parks v. Ross, 11 How. (U. S.) 323; Kendrick v. Cisco, 13 Lea 362, 13 L. ed. 730. (Tenn.) 248. "Orleans v. Piatt, 99 U. S. 076, 'Clark V. Goddard, 39 Ala. 164, 25 L. ed. 404; Moulor v. American 84 Am. Dec. Ill; Baker v. Chatfield, Life Ins. Co., 101 U. S. 708, 25 L. 23 Fla. 540, 2 So. 822; Fairbury v. ed. 1077; Lau v. Fletcher, 104 Mich. Rogers, 98 111. 554; Sheahan v. 295, 62 N. W. 357; McKnight v. Bell, Barry, 27 Mich. 217; Turner v. Lo- 168 Pa. St. 50, 31 Atl. 942, 47 Am! ler, 34 Mo. 461. St. 877. 'Mawich v. Elsey, 47 Mich. 10, 'Arguments on the law applicable 8 N. W. 587; Huston v. Barstow, 19 to a criminal case are addressed to g 6 INSTRUCTIONS RULES. O contentions of the parties f to define the claim of one party, with- out expressing an opinion as to its soundness or validity ;" to in- form the jury as to a party's theory of the case and show wherein his evidence has a tendency to substantiate such theory;^" to in- struct seriatim on each of several issues of fact;^^ and even to instruct that there is only one issue before the jury where, al- though defendant's pleas raise several issues, he admits upon the trial all of plaintiff's contentions except one/^ Where the court has properly stated to the jury the material allegations of the indictment which the prosecution is required to establish beyond a reasonable doubt, it is not error to instruct that a conviction should follow if all the material allegations of the indictment have been proved beyond a reasonable doubt/* In a criminal case it is proper to instruct that the case should be decided upon the law and the evidence without regard to the personal ideas of the jurors as to what the law ought to be/* § 6. Function of court to determine legal principles appli- cable to case. It is the exclusive function of the court to determine and declare the general principles of law applicable to a case on trial/' It is the positive duty of the court to refrain from submitting questions of law to the jury." Thus in an action to recover dam- ages for false imprisonment, a requested instruction submitting the sound discretion of the court and " McCaughey v. State, 156 Ind. 41, not to the jury. Leonard v. State, 56 59 N. E. 169. Tex. Cr. 84, 119 S. W. 98. "People v. Stone, 154 111. App. 7; ° Hadlock v. Brooks, 178 Mass. 425, State v. Taylor, 57 W. Va. 228, 50 59 N. E. 1009, 55 L. R. A. 320; S. E. 247. Bryce v. Cayce, 62 S. Car. 546, 40 ^"Dominick v. Randolph, 124 Ala. S. E. 948; McCann v. Ullman, 109 557, 27 So. 481; Telfair County v. Wis. 574, 85 N. W. 493. Webb, 119 Ga. 916, 47 S. E. 218; "Richards v. Richman, 5 Penn. Moore v. Hinkle, 151 Ind. 343, 50 N. (Del.) 558, 64 Atl. 238. E. 822; Goodrich v. Davis, 52 Mass. "Rogers v. Ferris, 107 Mich. 126, (11 Mete.) 473; Jones v. Murray, 167 64 N. W. 1048. Mo. 25, 66 S. W. 981; Houston &c. "Coleman v. Drane, 116 Mo. 387, R. Co. v. Hubbard (Tex. Civ. App) 22 S. W. 801. 37 S. W. 25. "De Graffenreid v. Menard, 103 '"Tompkins v. Montgomery, 123 Ga. 651, 30 S. E. 560. Cal. 219, 55 Pac. 997; Reid v. An- 7 PROVINCE OF COURT AND JURY. § 7 to the jury the question whether "plaintiff was illegally impris- oned" was rightly refused, as requiring the jury to determine a matter of law/^ So the court should make plain to the jury the issues they are to try, and an instruction which refers the jury to the pleadings is faulty.^^ Generally, there can be no valid objec- tion to an instruction which merely empowers the jury to deter- mine whether the proof adduced sustains the issue made by the pleadings but does not leave the jury to determine the materiality or the legal effect of any averments in the declaration/^ So, while a charge, standing alone, which tells the jury they may determine whether plaintiff "has a right to recover in this action" may be open to criticism, it cannot be prejudicial where a differ- ent part of the charge instructs the jury that "the court is the exclusive judge of the law governing the case and you are the exclusive judges of the facts from the testimony in the case and of the credibility of the witnesses."^" § 7. Function of court to construe papers and documents. It is the exclusive function of the court to construe and de- clare the meaning of papers and documents/^ such as, let- derson, 13 App. D. C. 30; Harmison proposition of law rather than of V. Fleming, 105 III. App. 43; Smith fact. Tompkins v. Montgomery, 123 V. Cornett, 18 Ky. L. 818, 38 S. W. Cal. 219, 55 Pac. 997. 689; Roth v. Shupp, 94 Md. 55, 50 "Roth v. Shupp, 94 Md. 55, 50 Atl. Atl. 430; Anderson v. Thunder Bay 430. River Boom Co., 57 Mich. 216, 23 "Erb v. German-American Ins. N. W. 776; Gallick v. Bordeaux, 31 Co., 112 Iowa 357, 83 N. W. 1053. Mont. 328, 78 Pac. 583 ; Keen v. Mon- ^' Central R. Co. v. Bannister, 195 roe, 75 Va. 424. Thus in an action for III. 48, 62 N. E. 864. personal injuries sustained by being ^Gillett v. Corum, 7 Kans. 156. thrown from, defendant's vehicle, an ^ Schilansky v. Merchants' &c. Fire instruction was properly refused Ins. Co., 4 Penn. (Del.) 293, 55 which told the jury that if they found Atl. 1014; O'Brien v. Pabst Brewing that a certain companion of the plain- Co., 31 App. D. C. 56; McCuUough tiff, "by reason of having hired the Bros. v. Armstrong, 118 Ga. 424, 45 team, wagon and driver from the S. E. 379; Libby v. Deake, 97 Maine defendant, had become, as it were, 377, 54 Atl. 856; Bond v. Humbird, the owner or proprietor of said team, 118 Md. 650, 85 Atl. 943; Young v. wagon and driver for that day," then Byrd, 124 Mo. 590, 28 S. W. 83, 46 the defendant was not responsible. Am. St. 461 ; Liggett v. Levy, 233 Mo. The effect of the instruction would 590, 136 S. W. 299, Ann. Cas. 1912 C, have been to submit to the jury a 70, Thompson v. Family Protective § 7 INSTRUCTIONS RULES. 8 ters,=^ contracts,==' corporate charters,^* leases/' mortgages,^" deeds," tax titles/' wills/' judgments/" ordinances/' and domestic statutes.^^ The construction of these papers and documents may not be submitted to the jury. The question of the applicability of these instruments to the facts in issue is, however, a question of fact for the jury, where their applicability depends on the facts/^ Again the question may be for the jury where the instrument is ambiguous and the meaning sought is that of the parties as shown by their conduct Union, 66 S. Car. 459, 45 S. E. 19; (U. S.) 279, 12 L. ed. 437; St. John Bedenbaugh v. Southern R. Co., 69 v. Burapstead, 17 Barb. (N. Y.) 100. S. Car. 1, 48 S. E. S3 ; Miller v. At- "^ Brown v. Huger, 21 How. (U. lantic Coast Line R. Co., 94 S. Car. S.) 305, 16 L. ed. 125 ; Humes v. Bern- 388, n S. E. 1111; Blair v. Baird, 43 stein, 72 Ala. 546; Eddy v. Chace, 140 Tex. Civ. App. 134, 94 S. W. 116; Mass. 471, 5 N. E. 306; Johnson v. Marsh v. Phillips (Tex. Civ. App.), Shively, 9 Ore. 333 ; Hodges v. Strong, 144 S. W. 1160; State v. White, 70 10 Vt. 247. Vt. 225, 39 Atl. 1085 (abbreviations ''Johnson v. Scott, 205 Mass. 294, contained in documents) ; Mellen v. 91 N. E. 302. United States Health &c. Co., 85 Vt. ^Downing v. Bain, 24 Ga. 372; 305, 82 Atl. 4; Norwich Lock Mfg. Sartor v. Sartor, 39 Miss. 760; Ma- Co. V. Hockaday, 89 Va. 557, 16 S. E. gee v. -McNeil, 41 Miss. 17, 90 Am. 877. Whether instrument complies Dec. 354; Underbill v. Vandervoort, with statute is question of law for the 56 N. Y. 242 ; Green v. Collins, 28 N. court. Missouri &c. R. Co. v. United Car. 139. States, 178 Fed. IS. =° Young v. Byrd, 124 Mo. 590, 28 ""Barcus v. Wayne Auto Co., 162 S. W. 83, 46 Am. St. 461. Mich. 177, 127 N. W. 23; Thompson =' Sadler v. Peoples, 105 Fed. 712; V. Family Protective Union, 66 S. Williams v. St. Joseph, 166 Mo. App. Car. 459, 45 S. E. 19. 299, 148 S. W. 459. ^ McCuUough Bros. v. Armstrong, ^ South Ottawa v. Perkins, 94 U. 118 Ga. 424, 45 S. E. 379; Libby v. S. 260, 24 L. ed. 154; Sealy v. Mis- Deake, 97 Maine W, 54 Atl. 856; souri &c. R. Co., 84 Kans. 479, 114 Black River Lumber Co. v. Warner, Pac. 1077, 41 L. R. A. (N. S.) 500; 93 Mo. 374, 6 S. W. 210, 3 Am. St. Winchell v. Camillus, 109 App. Div'. 544; Blair v. Baird, 43 Tex. Civ. App. 341, 95 N. Y. S. 688; Gallatin Turn- 134, 94 S. W. 116. pike Co. v. State, 16 Lea (Tenn.) 36; "* Norwich Lock Mfg. Co. v. Hock- Ongaro v. Twohy. 57 Wash. 668, 107 aday, 89 Va. 557, 16 S. E. 877. Pac. 834 (no dispute as to law of "■^ Miller V. Citizens' BIdg. &c. Assn., sister state). SO Ind. App. 132, 98 N. E. 70; Dumn ^Miller v. Atlantic Coast Line R. V. Rothermel, 112 Pa. 272, 3 Atl. 800. Co., 94 S. Car. 388, 11 S. E. 1111. =° United States v. Hodge, 6 How. 9 PROVINCE OF COURT AND JURY. § 8 and transactions." So the question may be for the jury where the effect of the instrument depends, not merely on its construc- tion, but on collateral facts and circumstances.^^ The question of the existence of a foreign law is usually one of fact for the jury and its interpretation for the court after its existence is established by proof."^ The law of a foreign country is not ju- dicially recognized, but must be proved like any other fact. The proof of the law of a foreign country may be by the introduction in evidence of its statutes and decisions, or by the testimony of experts learned in the law, or by both. If the law is found in a single statute or in a single decision, the construction of it, like that of any other writing, is a question of law for the court.^^ It is said, however, that where the foreign law "is to be deter- mined by considering numerous decisions which may be more or less conflicting, or which bear upon the subject only collaterally, or by way of analogy, and where inferences may be drawn from them, the question to be determined is one of fact and not of law."'' § 8. Function of court to determine competency and mate- riality of evidence. The question of the competency and materiality of evi- dence is for the court alone and may not be submitted to the jury.'^ It is another statement of the rule to say that the question of the admissibility of evidence is for the court and its weight and "* Cleveland &c. R. Co. v. Gossett, 200 Mass. 386, 86 N. E. 947, 128 Am. 172 Ind. S2S, 87 N. E. 723. St. 434; Coe v. Hill, 201 Mass. IS, 86 ""Fuller V. Smith, 107 Maine 161, 77 N. E. 949, 25 L. R. A. (N. S.) 311. Atl. 706. ='Ames v. McCamber, 124 Mass. 85, '"Collins V. Norfolk &c. R. Co., 152 91. Ky. 755, 154 S. W. 37; Ely V. James, ""Townsend v. State, 2 Blackf. 123 Mass. 44; Schweitzer v. Hamburg (Ind.) 151; People v. Hurst, 41 Mich. &c. Gesellschaft, 149 App. Div. 900, 328, 1 N. W. 1027; Clarence v. State, 134 N. Y. S. 812; Jenness v. Simpson, 86 Nebr. 210, 125 N. W. 540; State 84 Vt. 127, 78 Atl. 886; Rainey v. v. Roselair, 57 Ore. 8, 109 Pac. 865; Grand Trunk R. Co., 84 Vt. 521, 80 State v. Carlisle, 30 S. Dak. 475, 139 Atl. 723; Bradley v. Bentley, 85 Vt. N. W. 127. The materiality of tes- 412, 82 Atl. 669. tiraony is a question of law for the ^ Electric Welding Co. v. Prince, court as a general rule, but there are (8 INSTRUCTIONS RULES. lO comparative value for the jury.*" In criminal cases it is for the court to determine whether a sufficient foundation has been laid to admit testimony of threats ;" whether a confession or admis- sion is sufficiently free and voluntary to be competent testi- mony ;*^ whether the general reputation of a witness in the place of former residence is too remote in point of time to be allowed as impeaching evidence ;** whether evidence of a distinct crime is relevant to any issue in the case;** whether the existence of a conspiracy has been sufficiently established to admit evidence of declarations and acts of one defendant against all ;*^ whether the evidence for the state has sufficient probative force to raise an occasions where the materiality de- pends upon disputed facts and it then becomes a mixed question of law and fact, and should be submitted to the jury under proper instructions. Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594. "Ward V. State, 4 Ala. App. 112, 58 So. 788; Rouse v. State, 136 Ga. 356, 71 S. E. 667; Smalls v. State, 6 Ga. App. 502, 65 S. E. 295; Caido v. State, 7 Okla. Cr. 139, 122 Pac. 734; Newton V. State, 62 Tex. Cr. 622, 138 S. W. 708. '^ State V. Williams, 111 La. 205, 35 So. 521. "Harrold v. Territory, 169 Fed. 47; McKinney v. State, 134 Ala. 134, 32 So. 726; Fowler v. State, 170 Ala. 65, 54 So. 115 (admission) ; Kirby v. State, 44 Fla. 81, 32 So. 836; Sims V. State, 59 Fla. 38, 52 So. 198; Price V. State, 114 Ga. 855, 40 S. E. 1015; Hauk V. State, 148 Ind. 238, 46 N. E. 1027; State v. Storms, 113 Iowa 385, 85 N. W. 610, 86 Am. St. 380; Com- monwealth V. Antaya, 184 Mass. 326, 68 N. E. 331; Hunter v. State, 74 Miss. 515, 21 So. 305 ; State v. Will- iams, 31 Nev. 360, 102 Pac. 974; State V. Young, 67 N. J. L. 223, 51 Atl. 939; Commonwealth v. Aston, 227 Pa. 112, 75 Atl. 1019; State v. Mann, 39 Wash. 144, 81 Pac. 561 (mixed question of law and fact) ; Hintz V. State, 125 Wis. 405, 104 N. W. 110. But see Godau v. State (Ala.), 60 So. 908; Morris v. State, 39 Tex. Cr. 371, 46 S. W. 253 ; Over- street V. State (Tex. Cr.), 150 S. W. 899. The court should hear argu- ment on the question of voluntari- ness in the absence of the jury. Kirk V. Territory, 10 Okla. 46, 60 Pac. 797. The question of the competency of a confession should be submitted to the jury where the evidence is conflict- ing and leaves any question of the competency in the mind of the court. State V. Allison, 24 S. Dak. 622, 124 N. W. 747. Invasion by instruction that if confessions were shown to have been understandingly made, and correctly remembered by the witnesses and substantially repeated by them on the witness stand, they were "entitled to great weight." State v. Willing, 129 Iowa 72, 105 N. W. 355. "People V. Cord, 157 Cal. 562, 108 Pac. 511, 2,1 L. R. A. (N. S.) 549. "People V. Cook, 148 Cal. 334, 83 Pac. 43. " State V. Thompson, 69 Conn. 720, 38 Atl. 868, 38 L. R. A. 804; State V. Walker, 124 Iowa 414, 100 N. W, 354. II PROVINCE OF COURT AND JURY. §9 issue of fact.*" Where there is no proof of venue it is a question for the court to pass upon, but where the question is as to the suf- ficiency of the evidence tending to prove the venue, it then be- comes a question for the jury.*' § 9. Direction of verdict in civil cases. A peremptory instruction should be given commanding the jury to return a verdict without the consideration of any evi- dence whatsoever where the facts in the case are such that all reasonable minds can draw but one inference therefrom. In such a case the question is one of law for the court.** Where there is a fair conflict in the evidence the question must be left to the jury.*' It is proper for the court to direct a verdict for the defendant where there is a fatal variance between the complaint and the proof adduced in support of such complaint.^" Where a party is entitled to a directed verdict on the evidence, his opponent may not complain of error in the charge, since such error, if any exists, is without prejudice."^ On the motion to direct a verdict the court does not weigh the evidence. The testi- mony given in behalf of a party against whom such a motion has been made will be regarded as true if not contrary to a known natural law, even though contradicted." "State V. Claybaugh, 138 Mo. App. S. E. 352, 15 L. R. A. 332; Bare v. 360, 122 S. W. 319. Pennsylvania R. Co., 13S Pa. 95, 19 "Pearson v. State, 5 Ala. App. 68, Atl. 935; Saunders v. Southern Pac. 59 So. 526; Shaffer v. Territory, 14 Co., 13 Utah 275, 44 Pac. 932; North- Ariz. 329, 127 Pac. 746. em Pac. R. Co. v. O'Brien, 1 Wash. "St. Louis &c. R. Co. V. Martin, 599, 21 Pac. 32; Sallady v. Dodge- 61 Ark. 549, 33 S. W. 1070; Chicago viUe, 85 Wis. 318, 55 N. W. 696, 20 V. Babcock, 143 III. 358, 32 N. E. 271 ; L. R. A. 541. Lake Shore &c. R. Co. v. Pinchin, 112 "Brinsmaid v. United Commercial Ind. 592, 13 N. E. 677; Chanute v. Travellers (Iowa), 138 N. W. 465; Higgins, 65 Kans. 680, 70 Pac. 638; Wendt v. Richmond, 164 Mich. 173, Newport News &c. R. Co. v. Dent- 129 N. W. 38. zal, 91 Ky. 42, 14 S. W. 958; Watson "Peckinpaugh v. Lamb, 70 Kans. V. Portland &c. R. Co., 91 Maine 584, 799, 79 Pac. 673. 40 Atl. 699, 44 L. R. A. 157, 64 Am. " Carver v. Sherman, 172 Mich. 264, St. 268; State v. Baltimore &c. R. 137 N. W. 519. Co., 69 Md. 339, 14 Atl. 688; McDon- "Vaughn v. Chicago Junction R. nell V. Long Island R. Co., 116 N. Co., 249 111. 206, 94 N. E. 40, 35 L. Y. 546, 22 N. E. 1068; Emry v. Ra- R. A. (N. S.) 1074. leigh &c. R. Co., 109 N. Car. 589, 14 lO INSTRUCTIONS RULES. 12 § 10. Direction of verdict in criminal cases. In criminal cases, the courts, in most jurisdictions, have the right to direct an acquittal where there is an entire lack of evidence to support a verdict of guilty. °^ The power, how- ever, is discretionary and the directed verdict may not be de- manded as a matter of right," and if demanded should be refused where there is evidence, however slight, which points toward the guilt of the accused. °^ A verdict of guilty may not be directed.^^ Where there is a failure of proof in a criminal trial, the proper practice is to move the court to direct an acquittal and such mo- tion must specify wherein there is a failure of proof." The ver- dict may not be directed before the evidence for the state is all "'Dufif V. United States, 185 Fed. 101; Jackson v. State (Ala.), 60 So. 97; Wilson v. Commonwealth (Ky.), 121 S. W. 430; Spencer v. Common- wealth (Ky.), 122 S. W. 800; People V. Gresser, 124 N. Y. S. 581 ; Pilgrim V. State, 3 Okla. Cr. 49, 104 Pac. 383; Huffman v. State, 6 Okla. Cr. 476, 119 Pac. 644; Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260; Common- wealth V. Yost, 197 Pa. 171, 46 Atl. 845. In South Carolina a circuit judge can not direct a verdict in a criminal case. State v. Saunders, 52 S. Car. 580, 30 S. E. 616. It is dis- cretionary with the trial court to di- rect an acquittal when there is no evidence against the accused except the uncorroborated testimony of ac- complices. Murphy v. State, 124 Wis. 635, 102 N. W. 1087. ■^Menefee v. State, 59 Fla. 316, 51 So. 555; Ryan v. State, 60 Fla. 25, 53 So. 448; Hughes v. State, 61 Fla. 32, 55 So. 463; Harvey v. State, 8 Ga. App. 660, 70 S. E. 141; State v. Brown, 72 N. J. L. 354, 60 Atl. 1117; State v. Lieberman, 80 N. J. L. 506, 79 Atl. 331. "'Thompson v. State, 122 Ala. 12, 26 So. 141; Coker v. State, 147 Ala. 701, 41 So. 303; Smith v. State, 165 Ala. 50, 51 So. 610; Davis v. State, 165 Ala. 93, 51 So. 239; Black v. State, 1 Ala. App. 168, 55 So. 948; Ferrell v. Commonwealth (Ky.), 127 S. W. 162; Commonwealth v. Boaz, 140 Ky. 715, 131 S. W. 782; People v. Henssler, 48 Mich. 49, 11 N. W. 804; State V. Sharp, 233 Mo. 269, 135 S. W. 488, 33 L. R. A. (N. S.) 179; State V. Koch, 33 Mont. 490, 85 Pac. 279; Faggard v. State, 3 Okla. Cr. 159, 104 Pac. 930; State v. Egland, 23 S. Dak. 323, 121 N. W. 798, 139 Am. St. 1066; Diaz v. State (Tex. Cr.), S3 S. W. 632. "' State V. Wilson, 62 Kans. 621, 64 Pac. 23, 52 L. R. A. 679; People v. Warren, 122 Mich. 504, 81 N. W. 360, 80 Am. St. 582 ; People v. Walker, 198 N. Y. 329, 91 N. E. 806; Everett V. Williams, 152 N. Car. 117, 67 S. E. 265; Potts V. State, 45 Tex. Cr. 45, 74 S. W. 31. But see Martin v. State, 3 Ala. App. 90, 58 So. 83; People v. Neal, 143 Mich. 271, 106 N. W. 857. "State V. Feister, 32 Ore. 254, SO Pac. 561, 67 Am. St. 521. A motion to discharge the defendant in a crim- 13 PROVINCE OF COURT AND JURY. §11 in.°* Where the statute gives the court the power to advise but not to direct a verdict, the accused is not prejudiced by the re- fusal to advise a verdict of acquittal.^* A motion to direct a ver- dict for the accused is not the proper procedure to raise the ques- tion of the constitutionaHty of the statute under which the prose- cution is brought.^" § 11. Summing up evidence by court. In jurisdictions where the giving of oral instructions is not forbidden, it is within the province of the court to sum up the evidence adduced upon the trial, so that the jury may see the application of rules of law thereto, but this does not author- ize the court to comment on the evidence or assume the exist- ence of facts which are not in proof. The purpose of summarizing the evidence is to enlighten the jury as to the issues and to enable them better to comprehend the principles of law in their concrete apphcation to the facts.°^ The court riiay exercise its discretion by stating all or a part of the facts/^ or he may inform the jury that any or all of the facts so summarized, if given credence by the jury, are to be weighed in conjunction v*ith other facts in evidence.^* So, under a Cali- fornia code provision which makes it incumbent upon the court, whenever the testimony is reviewed, to inform the jury that they are the sole judges of the facts, the court, after stating the evi- inal case -or to dismiss the indict- statement is not evidence within the ment has been held substantially a provision of the California penal code request to direct an acquittal. Peo- that "at any time after the evidence pie V. Ledwon, 153 N. Y. 10, 46 N. E. on either side is close^," the court 1046. There is the equivalent of a may advise the jury to acquit. Peo- motion to direct a verdict for de- pie v. Stoll, 143 Cal. 689, 11 Pac. 818. fendant by a requested charge that ''° Cohen v. State, 7 Ga. App. 5, 65 "under this evidence and on this S. E. 1096. complaint the defendant can ndt be "Moseley v. Washburn, 167 Mass.' convicted." State v. Collins, 24 R. 345, 45 N. E. 753. i. 242, 52 Atl. 990. »^ Shaw v. Tompson, 105 Mass. 345. "'State V. May, 153 N. Car. 600, 68 «" District of Columbia v. Robinson, S- E. 1062. 180 U. S. 92, 21 S. Ct. 283, 45 L. ed. "'People V. Stoll, 143 Cal. 689, 11 440. See also, O'Neill v. Blase, 94 Pac. 818; State v. Stone, 30 S. Dak. Mo. App. 648, 68 S. W. 764. 23, 137 N. W. 606. The opening §11 INSTRUCTIONS RULES. ' 14 dence, may tell the jury that they may find for the defendant if they "are satisfied this testimony is true" or may award such damages as they may think proper if they do not believe such evi- dence.** So also, under an Alabama code provision which gives the court authority to "state the evidence when the same is dis- puted," it is permissible for the court to say what the testimony of a certain witness was, where there is doubt as to what it was/* While the evidence may be reviewed or summarized, the court should refrain from commenting upon it, and there is such an ob- jectionable comment where the court says there is an entire ab- sence of evidence on an issue of the case, and there is evidence sufficient to raise an inference on the issue."" Where it is pro- vided, as in South Carolina, that "judges shall not charge juries in respect to matters of fact," the trial court must avoid express- ing an opinion on the testimony even where certain facts are in dispute. In such case the court should state the disputed facts purely in an hypothetical manner."' But the rule is not violated in cases where the instruction is not intended as a comment on the facts, but merely as a statement of the issues,"^ nor is it er- roneous for the court to inform the jury that evidence on one of the issues is lacking where this is the fact."" The court may, likewise, make reference to particular phases of* the testimony and apply principles of law thereto,'" or explain the various mat- ters of fact involved and differentiate between them.'^ Even where the presentation of facts to the jury is forbidden by the "Gately v. Campbell, 124 Cal. 520, as to a certain other fact, and this 57 Pac. 567. is true notwithstanding that the jury ""Folmar v. Siler, 132 Ala. 297, 31 asked for the instruction and the So. 719. court informed the jury that it was "Coghill V. Kennedy, 119 Ala. 641, their duty to remember the evidence. 24 So. 459. State v. Hyde, 20 Wash. 234, 55 Pac. " Bradley v. Drayton, 48 S. Car. 49, 72 Am. St. 97. 234, 26 S. E. 613. And so it is with- ■" Westbury v. Simmons, 57 S. Car. in the prohibition of the constitu- 467, 35 S. E. 764. tion of the State of Washington ™Feitl v. Chicago City R. Co., 113 (Const., Art. 4, § 16) to charge that 111. App. 381. the memoranda made by the presid- '"Haines v. Goodlander, 73 Kans. ing judge showed that a certain wit- 183, 84 Pac. 986. ness testified as to certain facts and "Hopcraft v. Kittredge, 162 Mass. that the court did not remember 1, 37 N. E. 768. whether the witness gave testimony 15 PROVINCE OF COURT AND JURY. § 12 laws of a state, as in Oregon, the court may direct the minds of the jurors to the theories of the parties by instructing that there is evidence "tending to show" certain features of the case." The court, although at liberty to refer to particular aspects or phases of the testimony, should avoid the assumption that certain facts exist where it is a controverted question whether they do or not.'^ There is a plain case of reversible error where the court instructs that specified testimony of a material character has been adduced and the record fails to disclose it.'* § 12. Presumptions of fact for jury. Presumptions of fact are for the jury alone and a court goes beyond its powers where it instructs as to what infer- ences are to be drawn from the evidence.' ° The court may not indicate a presumption of fact, however potent it may be in determining the question at issue. '^ Under this rule the court exceeds its privileges where it attempts to in- struct, as a matter of law, that the existence of one fact depends upon the existence of another." It is likewise an invasion of the province of the jury for the court to tell the jury the meaning of " Smitson v. Southern Pac. Co., Z1 Pac. 458; Hawkins v. Costigan, 21 Ore. 74, 60 Pac. 907. Wis. S4S. "Haines v. Goodlander, IZ Kans. '"People v. CarriUo, S4 Cal. 63; 183, 84 Pac. 986. Herkebrath v. Stookey, (>7, 111. 488; "Dougherty v. King, 22 App. Div. Insurance Co. v. Buchanan, 100 Ind. 610, 48 N. Y. S. 110. 81; McGhee Irr. Ditch Co. v. Hud- " People V. Walden, SI Cal. 588; son, 85 Tex. 587, 22 S. W. 398, 34 Linforth v. San Francisco Gas &c. Am. St. 826; Mitchell v. Stanton Co., 156 Cal. 58, 103 Pac. 320; South- (Tex. Civ. App.), 139 S. W. 1033. It ern Pine Co. v. Powell, 48 Fla. 154, is never proper for the court to in- Zl So. 570; Standard Cotton Mills v. struct the jury as to presumptions Cheatham, 125 Ga. 649, 54 S. E. 650; arising from certain facts, except Wood V. Olson, 117 111. App. 128; where the presumption is one of law Louisville &c. R. Co. v. Falvey, 104 and therefore conclusive, or one of Ind. 409, 3 N. E. 389; Warfield v. fact required by positive law, but Clark, 118 Iowa 69, 91 N. W. 833; rebuttable. White v. McCullough, 56 Coffin V. Brown, 94 Md. 190, SO Atl. Tex. Civ. App. 383, 120 S. W. 1093. 567, 55 L. R. A. 732, 89 Am. St. 422; " People v. Walden, 51 Cal. 588. Blackwood v. Brown, 32 Mich. 104; Thus it is an invasion of the jury's Izlar V. Manchester &c. R. Co., 57 S. province, in an action for personal in- Car. 332, 35 S. E. 583; Schuyler v. juries, to charge that, with reference Southern Pac. Co., Zl Utah 581, 109 to one of the material facts to be § 12 INSTRUCTIONS RULES. l6 the language used by the parties." It is the jury's right, in an action for a wrongful death, to determine the question of con- tributory negligence, as this is a matter to be inferred from the evidence." But the jury may not indulge in conjecture to de- termine a material question.*" It is not for the court to say that "if you believe the testimony of any witness as to certain facts, then you should find accordingly," for the jury may believe the witness and yet, quite properly, be governed in their action by the inferences to be drawn from the entire proof. The jury should be left free to find the ultimate facts, as it is their duty to do." It cannot be said, however, that an instruction drew a con- clusion from the evidence where, on the question, of negligence in a personal injury action, the jury were told that "the plaintiff, as a passenger, was not required by law to exercise extraordinary care or manifest the highest degree of prudence to avoid injury" and that "all the law required of him, while traveling as a pas- senger, was that he should exercise ordinary care and prudence for his safety, such as ordinarily careful persons would exercise under the same circumstance as those shown in evidence."*^ Neither is an inference drawn by an instruction which tells the jury that "if you find that the plaintiff was guilty of any negli- gence in going upon said platform or in getting off of said train, and that such negligence, if any, either caused or contributed to considered by the jury in determin- 170 111. App. 379. Improper to in- ing whether plaintiff himself was struct the jury that they may con- guilty of negligence, "he would have sider not only all the evidence and all the right to presume that the belt, the circumstances surrounding the once shifted from the tight to the question in dispute, but may also find loose pulley, and the machine there- any fact established which they may by stopped, would remain stopped think rightfully and reasonably in- until again started." The court, in ferable from the evidence. The in- so instructing, in effect disposed of a ference must be one which grows log- material question of fact for the ically out of the facts and be a legiti- jury. Standard Cotton Mills v. mate inference under the principles Cheatham, 125 Ga. 649, 54 S. E. 650. pertaining to the introduction of tes- " Hawkins v. Costigan, 21 Wis. 545. timony. Henry v. Colorado Land &c. '"Perez v. San Antonio &c. R. Co., Co., 10 Colo. App. 14, 51 Pac. 90. 28 Tex. Civ. App. 255, 67 S. W. 137. "' Chicago Union Trac. Co. v. ™ Alabama Great So. R. Co. v. Shedd, 110 111. App. 400. Demoville, 167 Ala. 292, 52 So. 406; "West Chicago St. R. Co. v. Mc- Lepman v. Employers' Liability Assn., Nulty, 166 111. 203, 46 N. E. 784. IJ PROVINCE OF COURT AND JURY. §13 his said injury, if any, then youi" verdict must be for defend- ant."*^ An instruction in a criminal case invades the province of the jury where it in effect authorizes a conviction for larceny on the unexplained recent possession alone.** So an instruction is invasive which tells the jury that a man is presumed to intend that which he does, and if accused, with a deadly weapon on slight provocation, gave decedent a mortal blow, he is prima facie guilty of wilful kiUing and has the burden of showing extenu- ating circumstances, and is guilty of murder in the first degree.*^ § 13. Hypothetical statement of facts. There is an invasion of the province of the jury; (1) where an uncontroverted fact is stated hypothetically ; (2) or where, in the case of doubtful and uncertain testimony, an instruc- tion asserts facts instead of stating them hj^othetically ; (3) or where a charge, in hypothetical form, is predicated upon an assumption of facts; (4) or where an hypothetical statement of facts is incorrectly made applicable to a concrete case. ( 1 ) A requested instruction is properly refused where it puts to the jury as hypothetical an uncontroverted fact.*" (2) Where the testimony is of an indeterminate character and such as to require inferences of fact, a charge in the form of a statement of fact rather than in the form of an hypothesis in- fringes upon the province of the jury.*' (3) It is not the duty of the court to charge upon a purely hypothetical fact, and if the court does so, in such a manner as to be prejudicial, as where the charge is predicated upon the as- '^ Williams V. Galveston &c. R. Co., "'State v. Herzog, 55 W. Va. 74, 34 Tex. Civ. App. 145, 78 S. W. 45. 46 S. E. 792. " State V. Hoshaw, 89 Minn. 310, 94 " Houston &c. R. Co. v. Harvin N. W. 873, 99 Am. St. 571; Stewart (Tex. Civ. App.), 54 S. W. 629. V. State (Tex. Cr.), 77 S. W. 791. In- Where there is no conflict in the evi- struction invasive that possession of dence the court may charge the jury stolen property is not of itself suffi- upon the facts directly without setting cient to authorize a conviction. May them out hypothetically. Bynon v. V. State, 40 Tex. Cr. 649, 51 S. W. State, 117 Ala. 80, 23 So. 640, 67 Am 242. St. 163. "Westbrook v. Fulton, 79 Ala. 510. 2 — Branson's Inst. § 13 INSTRUCTIONS RULES. 1 8 sumption of a fact unsupported by evidence, it will be error which should be corrected/' (4) While a principle of law may be laid down hypothetically and be unobjectionable in the abstract, yet where the instruction contains a statement that the rule so announced applies to the facts of the case, being based upon an assumption of the existence of controverted facts, the court may properly eliminate that por- tion asserting the applicability of the proposition to the facts of the case.'* There is an obvious violation of the rule where the instruction contains an hypothesis which is opposed to all the testimony.'" The court, however, does not overstep its authority in giving an instruction, in the form of an hypothetical statement of fact, where the instruction does not assume as undisputed the truth of the facts upon which it is founded and where there is sufficient evidence to justify the submission of the question to the jury,'^ or where there is an alternative statement of the evidence."^ And, while the court should not charge hypothetically upon a state of facts directly opposed to all the proof, yet where there is con- tradictory evidence as to the existence of a fact, the court may hypothetically state the fact as existing and predicate his charge upon it.°^ In South Carolina, where the Constitution provides that "judges shall not charge juries in respect to matters of fact, but shall declare the law," the court may, in declaring the law ap- plicable to a case, base that law upon hypothetical findings of fact by the jury."* The rules do not forbid the use of figures by the way of illustration in directing the jury how to estimate the present value of the loss of future earnings where they are ^ State V. Collins, 30 N. Car. 407. yond a reasonable doubt. Kyle v. *Lord V. Board of Trade, 163 111. People, 215 111. 250, 74 N. E. 146. 45, 45 N. E. 205. The use of a hy- ""Wise v. Wabash R. Co., 135 Mo. pothetical case to illustrate a charge App. 230, 115 S. W. 452. upon the law is not open to the ob- "■ Chandler v. DeGraff, 25 Minn. 88. jection that it charges in respect to '^Watson v. Musick, 2 Mo. 29. matters of fact. State v. Aughtry, 49 " Carlisle v. Hill, 16 Ala. 398. S. Car. 285, 26 S. E. 610. In criminal "Jenkins v. Charleston St. R. Co., cases it is proper to state hypothet- 58 S. Car. 373, 36 S. E. 703 ; La Fitte ically the facts to which a certain v. McNeel Marble Co., 88 S. Car. 378, rule of law is to be applied if the 70 S. E. 1013. facts are proved by the evidence be- 19 PROVINCE OF COURT AND JURY. 14 plainly told that the figures are used merely by way of illustra- tion and not with the intention of indicating what the verdict should be."" In giving hypothetical instructions the court should caution the jury that they are not to assume the existence or non- existence of any of the facts recited.'* § 14. Questions of fact and weight and sufficiency of evi- dence in criminal cases. In criminal cases the jury are the sole judges of questions of fact and the weight and sufficiency of the evidence to sup- port the allegations of the indictment or information.^' The matter is for the jury where there is any evidence, how- ever slight, which tends to establish any material fact involved on the trial of a crime,"^ and the case is the same where there is con- flicting evidence on controverted issues.*' It is for the jury to say whether the evidence has established such matters as the de- "Reed v. American Dyewood Co., 231 Pa. 431, 80 Atl. 873. "People V. Chadwick, 143 Cal. 116, 76 Pac. 884, 65 L. R. A. 419. " Hoke V. United States, 227 U. S. 308, 33 Sup. Ct. 281, 57 L. ed. 523; Arden v. State, 6 Ala. App. 64, 60 So. 538; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. SO; State v. Dougherty (Del.), 86 Atl. 736; New- port V. State, 140 Ind. 299, 39 N. E. 926; Miller v. State (Miss.), 35 So. 690; State v. Williams, 191 Mo. 205, 90 S. W. 448; Blunt v. State, 3 Okla. Cr. 449, 106 Pac. 806; State v. Cole- man, 17 S. Dak. 594, 98 N. W. 175; State V. Webb, 18 Utah 441, 56 Pac. 159; Curran v. State, 12 Wyo. 553, 76 Pac. 577. Jury may draw its own conclusions from the evidence, though such conclusions may differ from the theories of accused or the state. Bru- naugh V. State, 173 Ind. 483, 90 N. E. 1019. ''Morris v. State (Ala.), 39 So. 608. "Walker v. State, 117 Ala. 42, 23 So. 149; Hampton v. State, 1 Ala. App. 156, 55 So. 1018; People v. Hay- don, 18 Cal. App. 543, 123 Pac. 1102; People V. Stewart, 163 Mich. 1, 127 N. W. 816; State v. Devorss, 221 Mo. 469, 120 S. W. 75; People v. Ferrara, 199 N. Y. 414, 92 N. E. 1054; State v. Buchanan, 32 R. I. 490, 79 Atl. 1114. Where testimony is conflicting, it is the duty of the jury to reconcile it if possible; otherwise to reject that which they deem unworthy of credit, having regard to the character, intel- ligence, and bias of the witnesses and their opportunities of knowledge. State V. Lee, 24 Del. 18, 74 Atl. 4. § 14 INSTRUCTIONS RULES. 20 fense of insanity/ a criminal intent/ guilty knowledge/ the venue/ the corpus delicti/ an alibi/ the identification of the de- fendant/ the impeachment of a witness/ former acquittal/ former jeopardy/" the force and effect of confessions/^ the truth or falsity of admissions by the accused/^ and the commis- sion of the offense within the statute of limitations/^ It is like- wise a question for the jury whether a witness is an accomplice/* ' People V. Hubert, 119 Cal. 216, SI Pac. 329, 63 Am. St. 72; State v. Holme, 54 Mo. 153; State v. Howard, 30 Mont. 518, 77 Pac. 50; Larson v. State, 92 Nebr. 24, 137 N. W. 894; Adair v. State, 6 Okla! Cr. 284, 118 Pac. 416; Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707; Baker v. State (Okla. Cr.), 130 Pac. 524; Oborn v. State, 143 Wis. 249, 126 N. W. 757, 31 L. R. A. (N. S.) 966. The defense of insanity becomes a matter of evi- dence, the admissibility of which must first be passed on by the court to determine the form of insanity, and it then becomes a question of law for the court whether the form of in- sanity attempted to be proved is a le- gal defense, and if recognized the de- fense must be submitted to the jury by proper instructions. State v. Casey, 34 Nev. 154, 117 Pac. S. 'McNair v. State, 61 Fla. 35, 55 So. 401. 'Bonker v. People, 37 Mich. 4. 'Williams v. State, 5 Ala. App. 112, 59 So. 528; Spinks v. State, 104 Ark. 641, 149 S. W. 54; State v. Roland, 11 Idaho 490, 83 Pac. 337; State v. Spayde, 110 Iowa 726, 80 N. W. 1058; State V. Kline, 109 La. 603, 33 So. 618; State v. Burns, 48 Mo. 438. " People V. Trine, 164 Mich. 1, 129 N. W. 3. "Stiles V. State, 113 Ga. 700, 39 S. E. 295; Tipton v. State, 119 Ga. 304, 46 S. E. 436. ' People V. Schoedde, 126 Cal. 373, 58 Pac. 859; Barr v. People, 30 Colo. 522, 71 Pac. 392; Gray v. State, 6 Ga. App. 428, 65 S. E. 191; Tatum v. Commonwealth, 22 Ky. L. 927, 59 S. W. 32; People v. Jackson, 182 N. Y. 66, 74 N. E. 565, 70 L. R. A. 787. "Huff V. State, 104 Ga. 521, 30 S. E. 808; People v. Hare, 57 Mich. SOS, 24 N. W. 843; State v. Sharp, 183 Mo. 715, 82 S. W. 134. 'Dunn V. State, 70 Ind. 47; State v. Foley, 114 La. 412, 38 So. 402; State v. Tatman, 228 Mo. 470, 128 S. W. 736; State v. Rosa, 72 N. J. L. 462, 62 Atl. 695. "Woodward v. State, 42 Tex. Cr. 108, 58 S. W. 135, 96 Am. St. 792. But see Lanphere v. State, 114 Wis. 193, 89 N. W. 128. "Fowler v. State, 170 Ala. 65, 54 So. lis ; People v. Gukouski, 250 111. 231, 95 N. E. 153, Ann. Cas. 1912 B, 297; Becker v. State, 91 Nebr. 352, 136 N. W. 17. "People V. Buckley, 143 Cal. 375, 77 Pac. 169; Ausmus v. People, 47 Colo. 167, 107 Pac. 204. "State V. Newton, 39 Wash. 491, 81 Pac. 1002. "People V. Compton, 123 Cal. 403, 56 Pac. 44; Hargrove v. State, 125 Ga. 270, 54 S. E. 164; Smith v. Com- monwealth, 148 Ky. 60, 146 S. W. 4; State V. Moeller, 24 N. Dak. 165, 138 N. W. 981; Clay v. State, 40 Tex. Cr. 556, 51 S. W. 212. Where the evidence did not in any way connect a witness with the crime charged he was not an accomplice, so as to re- quire the submission of the question 21 PROVINCE OF COURT AND JURY. §15 whether such a witness has been corroborated ;" whether evidence favorable to accused raises a reasonable doubt of his guilt ;^° and whether reasonable force has been used in retaking property wrongfully taken.^' The weight to be given to statements which form a part of the res gestae is for the jury/^ § 15. Assumption of facts. The exclusive province of the jury to pass upon the facts is violated by instructions which assume as a fact material mat- ters in dispute not established by the evidence.^* The rule forbids the assumption of disputed facts whether made directly or indirectly/" and the error is not, as a general whether he was an accomplice. Tate 63 S. W. 756; Bonaparte v. Thayer, V. State (Tex. Cr.), ISO S. W. 133. 95 Md. 548, 52 Atl. 496; Clough v. "State V. Dorsey, 154 Iowa 298, 134 Whitcomb, 105 Mass. 482; Chadwick N. W. 946; People v. Barry, 196 N. v. Butler, 28 Mich. 349; Burnett v. Y. 507, 89 N. E. 1107; People v. Great Northern R. Co., Id Minn. 461, Kathan, 136 App. Div. 303, 120 N. Y. 79 N. W. 523 ; Connor v. Metropol- S. 1096; McGill v. State, 6 Okla. Cr. itan Life Ins. Co., 78 Mo. App. 131; 512, 120 Pac. 297; State v. Walsh, 25 Gallick v. Bordeaux, 31 Mont. 328, S. Dak. 30, 125 N. W. 295. 78 Pac. 583 ; South Omaha v. Wrzen- " People V. Williams, 240 111. dii, sinski, 66 Nebr. 790, 92 N. W. 1045; 88 N. E. 1053. LeRoy v. Park Fire Ins. Co., 39 N. "Commonwealth v. Donahue, 148 Y. 56; Ward v. Odell Mfg. Co., 123 Mass. 529, 20 N. E. 171, 2 L. R. A. N. Car. 248, 31 S. E. 495; Northern 623, 12 Am. St. 591. Ohio R. Co. v. Rigby, 69 Ohio St. "Rouse V. State, 135 Ga. 227, 69 184, 68 N. E. 1046; Archer v. United S. E. 180. States, 9 Okla. 569, 60 Pac. 268 "Birmingham R. &c. Co. v. City Greenfield v. East Harrisburg Pass Stable Co., 119 Ala. 615, 24 So. 558, R. Co., 178 Pa. 194, 35 Atl. 626 72 Am. St. 955; Dorian v. Wester- Richardson v. Dybedahl, 17 S. Dak, vitch, 140 Ala. 283, Zl So. 382, 103 629, 98 N. W. 164, 106 Am. St. 788 Am. St. 35; Rogers v. Manhattan Clark v. Clark, 21 Tex. Civ. App. 371, Life Ins. Co., 138 Cal. 285, 71 Pac. 51 S. W. m. "There is no principle 348; Daniels v. State, 2 Penn. better established than that which de- (Del.) 586, 48 Atl. 196, 54 L. R. A. nies to the court the right of assum- 286; Southern Pine Co. v. Powell, 48 ing any fact, in aid of a prayer, Fla. 154, 37 So. 570; Crummey v. where the onus of proving such fact Bentley, 114 Ga. 746, 40 S. E. 765; rests upon the party asking the in- Illinois Cent. R. Co. v. Anderson, struction, no matter how strong and 184 111. 294, 56 N. E. 331; Carter v. convincing his proof on the subject Poraeroy, 30 Ind. 438 ; Hutton v. Dox- may be." Baltimore &c. R. Co. v. see, 116 Iowa 13, 89 N. W. 79; Wil- State, 104 Md. 16, 64 Atl. 304. son V. Fuller, 9 Kans. 176; Hender- =" People v. Williams, 17 Cal. 142; son County v. Dixon, 23 Ky. L. 1204, § 15 INSTRUCTIONS RULES. 22 rule, cured by another portion of the charge which submits the issue to the jury.^' The rule against the assumption of contro- verted matters in instructions is violated by instructions which assume the existence of a contract relation where that is the ques- tion in dispute on conflicting evidence.^^ Where, however, it is clear from the charge as a whole that the reference of the court to the terms of the agreement between the parties was intended merely to apprise the jury of the issues and where the charge submits to the jury the question of the existence of the contract, there is no error.^^ The performance or nonperformance of a contract is a question of fact to be decided by the jury from the evidence. Thus in an action to recover for labor performed in boring a well, an instruction is erroneous which assumes that the work has been finished, and the evidence on this point is contra- dictory.^* Where undue influence is involved in a suit to contest a will, it is for the jury to pass upon the question as to whether a relationship of close confidence and trust existed between the executor and the testator and the court therefore may, with pro- priety, refuse to instruct in such a way as to assume the existence of such a relationship.^^ The delivery of a deed is a question of the grantor's intention to surrender control of the instrument Baltimore &c. R. Co. v. State, 104 Md. "* Bates v. Harte, 124 Ala. 427, 26 76, 64 Atl. 304. So. 898, 82 Am. St. 186. But, in a ^ Cahoon v. Marshall, 25 Cal. 201 ; suit to recover the balance claimed to Bressler v. Schwertferger, IS 111. be due on a building contract, an in- App. 294; Marti v. American Smelt- struction which directs the jury to ing &c. Co., 23 Utah 52, 63 Pac. 184. find from the evidence whether or But see Brinkley Car Worics &c. Co. not the architect refused to deliver V. Cooper, 75 Ark. 325, 87 S. W. 645. the final certificate is not objection- '^ McCallon v. Cohen (Tex. Civ. able as instructing the jury to assume App.), 39 S. W. 973. So where one the nondelivery of the certificate as of the main issues as made by the a fact. Fitzgerald v. Benner, 219 111. pleadings is whether a partnership 485, 76 N. E. 709. had any existence in fact, the testi- "Turner's Appeal, 72 Conn. 305, 44 mony being conflicting on this point, Atl. 310. But where considerable and whether there was a partnership evidence is introduced to show a tes- liability, the court oversteps its tator's excessive use of intoxicants, bounds in assuming the existence of as bearing on the question of his men- the partnership. Lawrence v. West- tal capacity, the jury's province is lake, 28 Mont. 503, 73 Pac. 119, 98 not invaded by an instruction that if Am. St. 572. the testator was sober and in posses- ^ Blake v. Austin, 32 Tex. Civ. App. sion of all his mental faculties at 112, 75 S. W. 571. 23 PROVINCE OF COURT AND JURY. §15 and it is the sole right of the jury to determine whether intention may be inferred from certain acts on the part of the grantor.^" In an action to recover a commission for the sale of real estate, where the evidence is conflicting as to whether a definite price for the property had been fixed, an instruction assuming that the price was fixed is a violation of the rule.^' Negligence is a ques- tion for the jury where there are facts and circumstances from which it may or may not be inferred,^* and it is error to instruct that certain facts constitute negligence, where the law does not declare them to be such.^° The rule applies in actions against common carriers for personal injuries and an instruction assum- ing negligence or contributory negligence as established, when the time of the execution of the will, the fact that he was under the in- fluence of liquor on other occasions would not alone be sufficient to in- validate the instrument or that if the habit of intoxication was of such long standing as to cause unsoundness of mind, the same principles as to testamentary capacity would apply as in cases of mental unsoundness pro- duced by different causes. Swygart V. Willard, 166 Ind. 25, 76 N. E. 7SS. =' Walker v. Nix, 25 Tex. Civ. App. 596, 64 S. W. 1Z. ^ Sample v. Rand, 112 Iowa 616, 84 N. W. 683. "^ Walter v. Alabama Great So. R. Co., 142 Ala. 474, 39 So. 87; Ander- son V. Moore, 108 111. App. 106 ; Tea- garden V. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332; Baltimore Consol. R. Co. V. State, 91 Md. S06, 46 Atl. 1000; Klein v. St. Louis Trans. Co., 117 Mo. App. 691, 93 S. W. 281; Brush V. Long Island R. Co., 10 App. Div. 535, 42 N. Y. S. 103; Jones v. Charleston &c. R. Co., 61 S. Car. 556, 39 S. E. 758; St. Louis Southwestern R. Co. V. Gentry (Tex. Civ. App.), 74 S. W. 607; Clifford v. Minneapolis &c. R. Co., 105 Wis. 618, 81 N. W. 143. What is ordinary care is a question for the jury, to be decided in the light of all the attendant cir- cumstances, and an instruction is er- roneous which assumes that the ex- ercise of ordinary care requires a particular course of conduct in a given case. Nelson v. Knetzger, 109 111. App. 296. A prayer requesting an instruction that a railway com- pany is not responsible for the negli- gence of a city's watchman is er- roneous where it is an open question whether the watchman was in the city's employ, and the jury should be left to determine such fact. Bal- timore Consol. R. Co. V. State, 91 Md. 506, 46 Atl. 1000. So, in an action against an express company for goods alleged to have been lost in transit, an instruction to find for the plain- tiff "the value of the property con- signed to him that belonged to him and was never delivered" assumes as a fact the very issue to be tried by the jury and should be refused. American Exp. Co. v. Jennings, 86 Miss. 329, 38 So. 374, 109 Am. St. 708. =" Western &c. R. Co. v. Costeel, 138 Ga. 579, 75 S. E. 609. § 15 INSTRUCTIONS RULES. 24 in controversy, is in violation of the rule.^" Thus in a case of in- juries to a street railway passenger the rule was violated by an instruction which assumed that plaintiff was acquainted with certain facts and circumstances and knew that certain duties, as involving the question of his own care and caution, grew out of such facts and circumstances.^^ But an instruction in an action by an employe that "if the jury find from the evidence that the defendant's engine was derailed by reason of the cracked, de- fective and dangerous condition of said wheel," plaintiff is en- titled to recover, has been held not an assumption that the wheel was, as a matter of fact, cracked, dangerous and defective.^^ And in an action for personal injuries caused by falling into an un- protected elevator shaft, where a material controverted fact is whether the light at the opening was sufficient, it is no violation of the rule to instruct that the plaintiff was entitled to recover "if the jury 'find from the evidence that the shipping room near said elevator-opening on said day was dark and insufficiently lighted and that sunlight was partly excluded by the piling up of the furniture therein." The instruction does not assume the in- adequacy of the light as established, but puts the question to the jury and leaves the jury to determine the matter.^^ ""Baltimore &c. R. Co. v. State, 104 nished its salesman with a horse and Md. 76, 64 Atl. 304. Whether the buggy to be used in visiting patrons rate of speed at which a car is trav- where one of the principal issues was eling is negligent is to be determined whether or not reasonably safe and by a consideration of all the sur- suitable harness had been provided, rounding circumstances and where a charge was not erroneous which the facts are in dispute it is properly said that "if, upon reviewing the tes- a question for the jury. Hence an timony, you find that the plaintiff had instruction directing the jury to find equal opportunities— equal means of for the defendant street railway if ascertaining the defect— that the mas- they find that the speed of the car ter had, then the plaintiff could not was within nine miles an hour — the recover and your verdict would be limit prescribed by municipal ordi- for the defendant." The instruction nance— is an assumption of a fact, is not vulnerable to the objection that Atherton v. Tacoma R. &c. Co., 30 it assumed the existence of a defect Wash. 395, 71 Pac. 39. in the harness. Portner Brewing Co. '' Omaha St. R. Co. v. Cameron, 43 v. Cooper, 120 Ga. 20, 47 S. E. 631. Nebr. 297, 61 N. W. 606. ==Wendler v. People's House Fur- " Geary v. Kansas City &c. R. Co., nishing Co., 165 Mo. 527, 65 S. W. 138 Mo. 251, 39 S. W. 774, 60 Am. St. 737. 555. Where a brewing company fur- 25 PROVINCE OF COURT AND JURY. §17 § 16, Assumption of facts — Statement of issues and claims. But instructions are not open to objection on the ground of assuming controverted facts where they merely state the issues made by the pleadings,^* or the claims of the parties,^" or matters of common knowledge/" or abstract legal propo- sitions without applying them to the facts," or state facts in evidence hypothetically and without assuming that they have been established.^* In all cases it is essential that the instruction should work harm to the complaining party in order to cause a reversal on this ground/' Very obviously, one may not complain of this vice in an instruction given by the court at his request.*" § 17, Assumption of facts — Established, uncontrovertcd or admitted facts. The court may, however, assume the existence of facts without invading the province of the jury, (1) where the "Missouri &c. R. Co. v. Kyser, 43 Tex. Civ. App. 322, 95 S. W. 747; Ft. Worth &c. R. Co. v. Montgomery (Tex. Civ. App.), 141 S. W. 813. It can not be said that there is an as- sumption of a fact where the court, referring to the grounds relied upon for a recovery, as shown by the pleadings, tells the jury that "plain- tiffs, by their reply, give us a history of the transaction and claim." De St. Aubin v. Marshall Field & Co., 27 Colo. 414, 62 Pac. 199. ''Jarman v. Rea, 137 Cal. 339, 70 Pac. 216; Polykranas v. Krausz, 73 App. Div. 583, 77 N. Y. S. 46. '"Joliet V. Shufeldt, 144 111. 403, 32 N. E. 969, 18 L. R. A. 750, 36 Am. St. 453; Harris v. Shebek, 151 111. 287, 37 N. E. 1015; Lewis v. Bell, 109 Mich. 189, 66 N. W. 1091. " Anthony v. Seed, 146 Ala. 193, 40 So. 577; Florida Cent. &c. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. 149; Illinois Steel Co. v. Hanson, 97 111. App. 469. ^'Seaboard Mfg. Co. v. Woodson, 94 Ala. 143, 10 So. 87; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Morgan v. Wattles, 69 Ind. 260; Christy v. Des Moines City R. Co., 126 Iowa 428, 102 N. W. 194; Jones v. Edwards, 57 Miss. 28; Sioux City &c. R. Co. V. Smith, 22 Nebr. 775, 36 N. W. 285. °°Van Camp Hardware &c. Co. v. O'Brien, 28 Ind. App. 152, 62 N. E. 464; Reliance &c. Dye Works v. Mar- tin, 23 Ky. L. 1625, 65 S. W. 809; Walker v. Kansas City, 99 Mo. 647, 12 S. W. 894; Bourdeaux v. Hartman Furniture &c. Co., 115 Mo. App. 556, 91 S. W. 1020. "Davis v. Brown, 67 Mo. 313; Hag- gard v. German Ins. Co., S3 Mo. App. 98; Cole v. Gerraania Ins. Co., 99 N. Y. 36, 1 N. E. 38. §17 INSTRUCTIONS RULES. 26 evidence establishes the facts, (2) or where such facts are not controverted, (3) or are admitted. ( 1 ) Facts established bv the evidence may be assumed by the court.*^ Thus where the evidence establishes the possession of a prom- issory note, an instruction is not improper which tells the jury that possession of a promissory note by the payee at the time of his death is evidence tending to prove that there had been no gift of the note.*^ Where an injury is of such a nature that pain and anguish necessarily follow, an instruction may assume there was such pain and mental anguish."^ But, "it is only in a case where the testimony of a witness is not only unopposed by direct evidence, but where it is not in conflict with the just and proper inferences to be drawn from other facts proved in the case, that it is proper for the court to treat the evidence as wholly undis- puted."" (2) If a certain fact is not controverted, its truth may be as- sumed.*^ "■ Bessemer Land &c. Co. v. Camp- tell, 121 Ala. SO, 25 So. 793, 77 Am. St. 17 ; McGee v. Smitherman, 69 Ark. 632, 65 S. W. 461; Chicago City R. Co. V. Carroll, 206 111. 318, 68 N. E. 1087; Roberts v. Kendall, 12 Ind. App. 269, 38 N. E. 424; Henning v. Stevenson, 118 Ky. 318, 80 S. W. 1135; Toole V, Bearce, 91 Maine 209, 39 Atl. 558; Lemon v. DeWolf, 89 Minn. 465, 95 N. W. 316; Gayle v. Missouri Car &c. Co., 177 Mo. 427, 76 S. W. 987; First Nat. Bank v. Sargent, 65 Nebr. 594, 91 N. W. 595, 59 L. R. A. 296; Grossman v. Lurman, 57 App. Div. 393, 68 N. Y. S. 311; Wold Co. V. Western Union Tel. Co., 24 Pa. Super. Ct. 129; Riser v. Southern R. Co., 67 S. Car. 419, 46 S. E. 47; Northern Texas Trac. Co. v. Yates, 39 Tex. Civ. App. 114, 88 S. W. 283. "Oelke V. Theis, 70 Nebr. 465, 97 N. W. 588. "Dunn V. Northeast Elec. R. Co., 81 Mo. App. 42. " Schultz V. Schultz, 113 Mich. 502, 71 N. W. 854. "Birmingham R. &c. Co. v. Jones, 146 Ala. 277, 41 So. 146; Wolfer v. Redding, 48 Colo. 58, 108 Pac. 980; McCaflfrey v. Groton &c. R. Co., 85 Conn. 584, 84 Atl. 284; Truxton v. Fait &c. Co., 1 Penn. (Del.) 483, 42 Atl. 431, 73 Am. St. 81; Greer v. Raney, 120 Ga. 290, 47 S. E. 939; Ox- ford V. Oxford, 136 Ga. 589, 71 S. E. 883; Brennan v. Streator, 256 111. 468, 100 N. E. 266; Chicago Union Trac. Co. v. Newmiller, 116 111. App. 625; Indianapolis Trac. &c. Co. v. Smith, 38 Ind. App. 160, 77 N. E. 1140; State V. Wrangler, 151 Iowa 555, 132 N. W. 22; Otis Elev. Co. v. Wilson, 147 Ky. 676, 145 S. W. 391 ; McGuire V. Lawrence Mfg. Co., 156 Mass. 324, 31 N. E. 3, 16 L. R. A, 490, 32 Am. 27 PROVINCE OF COURT AND JURY. § I7 Thus in a suit involving claims to certain timber, the court is within its rights in charging that the detention of the logs was not disputed, where the record discloses no different situation."" Where the court, in charging with reference to the question as to whether a highway was maintained in a reasonably safe condi- tion, instructs that "there is no question, under the evidence, but there was a depression or hole, and an accumulation of bark near it, in the highway," there can be no objection if the testimony shows that the court's statement was justified.*^ (3) The court may assume facts admitted to be true,*^ either by the pleadings,"" or by the parties in the course of the trial.'*" Thus where liability has been admitted, the court may instruct that "the liability of the company is not disputed, but the amount of damages, if any, is questioned."" So, where the plaintiff ad- mits that his action does not involve certain property, a charge may be given limiting the jury, in their deliberations, to the prop- erty concerned in the litigation.^^ And so, where the only issue was as to the manner in which injuries were occasioned, the court very properly charged that the injuries were sustained."^ It seems very clear that the court may assume the existence of facts agreed upon by counsel for both parties.^* St. 4S6; Johnson v. Crookston Lum- Reardon v. Averbuck, 92 S. Car. 569, ter Co., 92 Minn. 393, 100 N. W. 22S; 75 S. E. 959. Phelps V. Conqueror Zinc &c. Co., 218 "Wiley v. Keokuk, 6 Kans. 94; Mo. 572, 117 S. W. 705; Fitzgerald v. Orth v. Clutz, 18 B. Mon. (Ky.) 223; Union Stockyards Co., 91 Nebr. 493, Brown v. Emerson, 66 Mo. App. 63, 136 N. W. 838; Jennings v. Edgefield 27 Am. Rep. 321. Mfg. Co., 72 S. Car. 411, 52 S. E. 113; '"People v. Phillips, 70 Cal. 61, 11 Reardon v. Averbuck, 92 S. Car. 569, Pac. 493 ; Blaul v. Tharp, 83 Iowa 75 S. E. 959; Ashland Coal &c. Co. 665, 49 N. W. 1044; Burt v. Long, V. Hull Coal &c. Corp., &1 W. Va. 503, 106 Mich. 210, 64 N. W. 60 ; Taylor « S. E. 124. V. Scherpe &c. Iron Co., 133 Mo. 349, "Johnson v. Moore, 28 Mich. 3. 34 S. W. 581; Cooper v. Denver &c. "Little V. Iron River, 102 Wis. 250, R. Co., 11 Utah 46, 39 Pac. 478. 78 N. W. 416. ^ North Chicago St. R. Co. v. Hon- *' Morrison v. Cureton, 139 Ga. 299, singer, 175 111. 318, 51 N. E. 613, 48 77 S. E. 160; Burt v. Long, 106 Mich. L. R. A. 753, dl Am. St. 214. 210, 64 N. W. 60; Brown v. Emer- ""Lee v. O'Quin, 103 Ga. 355, 30 S. son, 66 Mo. App. 63; Crampton v. E. 356. Ivie, 124 N. Car. 591, 32 S. E. 968; °= Sheffield Co. v. Harris (Ala.), 61 Latour v. Southern R. Co., 71 S. Car. So. 88. 532, 51 S. E. 265, 110 Am. St. 589; "State v. Pritchard, 16 Nev. 101. INSTRUCTIONS RULES. 28 § 18. Assumption of facts in criminal cases. The rule as to the assumption of facts applies with equal force to instructions in criminal cases. The rule is that the instructions must not assume a fact in dispute and which must be found by the jury.^^ The court may, however, as- sume as true facts which are undisputed,^" or admitted," or incontrovertibly proved.^^ The court must not directly or indirectly assume the guilt of " Williams V. State, 161 Ala. S2, 50 So. 59; Underwood v. State (Ala.), 60 So. 842; Parkes v. State, 7 Ala. App. 9, 60 So. 995 ; People v. Buster, S3 Cal. 612; People v. Mattliai, 135 Cal. 442, 67 Pac. 694; People v. Mc- Gie, 14 Cal. App. 99, 111 Pac. 264; State V. Alderman, 83 Conn. 597, 78 Atl. 331; Doyle v. State, 39 Fla. 155, 22 So. 274, 63 Am. St. 159; Wallace V. State, 41 Fla. 69, 40 So. 189; Cook V. State, 46 Fla. 20, 35 So.' 665; Peo- ple V. Bissett, 246 111. 516, 92 N. E. 949; People v. Johnson, 150 111. App. 424; State v. Johnson, 6 Kans. App. 119, 50 Pac! 907; People v. Schick, 75 Mich. 592, 42 N. W. 1008, 4 L. R. A. 707; State v. Duralli, 27 Nev. 41, 71 Pac. 532; State v. Dickey, 46 W. Va. 319, 33 S. E. 231 ; Cupps v. State, 120 Wis. 504, 97 N. W. 210, 102 Am. St. 996. ■"White V. State, 178 Ind. 317, 99 N. E. 417; People v. Hubbard, 92 Mich. 322, 52 N. W. 729; State v. Moore, 101 Mo. 316, 14 S. W. 182; State V. Welch, 22 Mont. 92, 55 Pac. 927; State v. Watson, 47 Ore. 543, 85 Pac. 336; State v. Nickels, 65 S. Car. 169, 43 S. E. 521, 95 Am. St. 789; State v. Driggers, 84 S. Car. 526, 66 S. E. 1042, 137 Am. St. 855; State V. Bazen, 89 S. Car. 260, 71 S. E. 779; Williams v. State, 37 Tex. Cr. 238, 39 S. W. 664; Ragazine v. State, 47 Tex. Cr. 46, 84 S. W. 832; Ellis V. State, 59 Tex. Cr. 630, 130 S. W. 171; Sheppard v. State, 63 Tex. Cr. 569, 140 S. W. 1090 (accom- plice) ; State v. Gordon, 28 Utah 15, 76 Pac. 882. No error in instructing jury on what day of the week a cer- tain day of the month fell. Koch v. State, 115 Ala. 99, 22 So. 471. An in- struction that mere weakness of mind is no defense to crime provided ac- cused has sufficient reason to know the quality of the act charged against him, and knew the difference be- tween the right and wrong of it does not assume that accused was weak- minded. Cox V. State, 60 Tex. Cr. 471, 132 S. W. 125. "State V. Vaughan, 141 Mo. 514, 42 S. W. 1080; Morgan v. State, 51 Nebr. 672, 71 N. W. 788; Pisar v. State, 56 Nebr. 455, 76 N. W. 869; People V. Walker, 198 N. Y. 329, 91 N. E. 806; State v. Ayers, 86 S. Car. 426, 68 S. E. 625. Not error to as- sume fact proved by the defendant. Edwards v. State, 62 Fla. 40, 56 So. 401. Not an assumption to refer to the knowledge of defendant of an event as a fact where his testimony as well as the evidence of the state showed such knowledge. Sherrill v. State, 138 Ala. 3, 35 So. 129. Where both the accused and his counsel ad- mitted the fact of flight, it was not error for the court to assume that there was evidence of flight. State V. Mangana, 33 Nev. 511, 112 Pac. 693. "' Pugh V. State, 4 Ala. App. 144, 58 So. 936; Roark v. State, 105 Ga. 736, 29 PROVINCE OF COURT AND JURY. §19 accused of the crime charged/" or other crimes."" But there is no assumption of facts in instructions which state the material aver- ments of the indictment,"^ on the contentions of the parties."^ Neither is there a violation of the rule by the assumption that the crime was committed where the controversy is as to the de- fenses interposed by the accused."' The truth of an accomplice's testimony is held to be assumed by an instruction that it must be corroborated, to warrant a conviction."* § 19. Weight of contradictory evidence for jury. The jury alone have the right to weigh and sift contradic- tory evidence and it is prejudicial for the court to determine the weight of such evidence,"^ or to instruct that a fact in con- troversy has,"" or has not been established."^ 32 S. E. 125; State v. Mortimer, 20 Kans. 93; State v. Fleetwood, 111 Minn. 70, 126 N. W. 485; Welsh v. State, 60 Nebr. 101, 82 N. W. 368; Bartell v. State, 4 Okla. Cr. 135, 111 Pac. 669; State v. Shepard, 30 S. Dak. 219, 138 N. W. 294; Winfield v. State, 44 Tex. Cr. 475, 72 S. W. 182 (ac- complice) ; Dugat V. State (Tex. Cr.), 148 S. W. 789; Cupps v. State, 120 Wis. 504, 97 N. W. 210, 102 Am. St. 996. The court may assume the ex- istence of collateral fact established by uncontroverted evidence and which tends to prove one of the constituent elements of a crime. Welsh v. State, 60 Nebr. 101, 82 N. W. 368. "'People V. Rowland, 13 Cal. App. 363, 109 Pac. 894. An instruction that a witness is an accomplice as- sumes that the witness has committed a crime for until a crime has been committed there can be no accompHce. State V. Potts, 239 Mo. 403, 144 S. W. 495. ™ Glenn v. State (Tex. Cr.), 1(> S. W. 757; Arnold v. State (Tex. Cr.), 83 S. W. 205; Rice v. State, 49 Tex. Cr. 569, 94 S. W. 1024. " Knights V. State, 58 Nebr. 225, 78 N. W. 508, 76 Am. St. 78. ''People V. Worden, 113 Cal. 569, 45 Pac. 844; State v. Kind, 80 N. J. L. 176, 75 Atl. 438. ■^ People V. Puttman, 129 Cal. 258, 61 Pac. 961; Komrs v. People, 31 Colo. 212, 12, Pac. 25; Hoover v. State, 161 Ind. 348, 68 N. E. 591; Dean v. State, 85 Miss. 40, il So. 501 ; State v. HoUoway, 156 Mo. 222, 56 S. W. 734. No error in assuming that defendant took the property where the only defense was that he took it for the purpose of taking care of it for the prosecutor. Hanner v. State (Tex. Cr.), 44 S. W. 489. "People V. Reilly, 25 Misc. 45, ^Z N. Y. S. 1005 ; Bell v. State, 39 Tex. Cr. 677, 47 S. W. 1010. '"Alabama Midland R. Co. v. Thompson, 134 Ala. 232, 32 So. 672; Metropolitan R. Co. v. Martin, 15 App. D. C. 552; Skow v. Locks (Nebr.), 91 N. W. 204; Corrigan v. Funk, 109 App. Div. 846, 96 N. Y. S. 910; Smith v. Jackson Tp., 26 Pa. Super. Ct. 234. ■"Florida Central &c. R. Co. v. Lu- cas, 110 Ga. 121, 35 S. E. 283; Gal- veston &c. R. Co. V. Manns, Zl Tex. Civ. App. 356, 84 S. W. 254. "Montgomery St. R. Co. v. Rice, § 20 INSTRUCTIONS RULES. 30 The courts in the absence of statute, can not as a matter of law, declare what effect shall be given any particular act or circum- stance, where the evidence is conflicting.''* Where the evidence is in direct conflict upon the principal fact at issue, an instruction is erroneous which tells the jury that "where the testimony of witnesses is irreconcilably conflicting, they should give great weight to the surrounding circumstances in determining which witness is entitled to credit.""' So there is an encroachment on the prerogatives by a charge which places more confidence in the testimony given by the witnesses for one party than to the testi- mony of the other side and the court announces that the verdict will be set aside unless the jury acts similarly.''" There was error of this character in a charge that "the undisputed evidence shows that she [the plaintiff] had a fall from the train when wrecked" and that "there was evidence to show some slight physical bruises which, I think, were not denied," when these points were, in fact, controverted.'^ But where the evidence is not in conflict, the court may say that it substantially supports the complaint." And where, there is, in fact, an absence of proof, the court may instruct that the issue is not sustained by the evidence.'^ § 20. Disparaging comments on merits of case. The court invades the province of the jury where he makes disparaging comments on the merits of the case as made by either of the parties. Where the evidence is conflicting and it is possible for different inferences to be deduced from the testimony, it is error to con- fine the jury to one view of the case, and so where the court charges that "it seems to me the plaintiff has made out a better case here and that your verdict ought to be for him," prejudicial error is committed.'* So where the principal issue is, w^hether 142 Ala. 674, 38 So. 857; Alabama "Florida Central &c. R. Co. v. Lu- Great So. R. Co. v. Bonner (Ala.), cas, 110 Ga. 121, 35 S. E. 283. 39 So. 619. " Schoefield Gear &c. Co. v. Schoe- "° Smith V. Cummings, 39 Utah 306, field, 71 Conn. 1, 40 Atl. 1046. 117 Pac. 38. "Alexander v. Harrison, 38 Mo. ""■Skow V. Locks (Nebr.), 91 N. 258, 90 Am. Dec. 431. W. 204. "Samuel v. Knight, 9 Pa. Super. "Corrigan v. Funk, 109 App. Div. Ct. 352. 846, 96 N. Y. S. 910. 31 PROVINCE OF COURT AND JURY. §21 there was an intent to defraud on the part of the defendant, the question being one for the jury, the court commits prejudicial error in charging that "I think it is a very thin case and I hesi- tate in submitting the case to you."'° So, in an action for per- sonal injuries sustained by reason of a defective bridge, a com- ment by the court that "it is useless to talk about that being old and rotten along there, or anything of the kind" and that "any verdict that the jury would find that is contrary to what I know to be the fact from my own personal knowledge I would not allow to stand for a minute" is a distinct invasion of the jury's province/" And so, likewise, where in an action on promissory notes, the defense was referred to by the court as "a fraudulent scheme," the charge was held to amount to an improper influence over the jury's action.''^ And where the trial court, in submitting special questions to the jury, said: "I want the jury to under- stand that these questions are got up to befuddle and mislead the jury so that there will be error in the trial of this case, so that the verdict may be set aside," the remark was prejudicial/* But where the language used in a charge amounted simply to a state- ment of the contradictory position in which defendant placed himself by his pleading and his evidence, it was held that the jury was not prejudiced thereby/® § 21. Comments and expressions of opinion on the evidence. The exclusive province of the jury as to the facts of a case is infringed by any comments on the facts or expression of opinion by the court as to the weight and effect to be given to the evidence, and this is the preponderating rule in this coun- try except, as will hereafter be shown, in some jurisdictions which follow the common law,*" When the evidence is parol, any opinion as to its weight, effect and sufficiency by the court is an invasion of the province of the " Sieling V. Clark, 75 N. Y. St, 1360, ™ McCusker v. Mitchell, 20 R. I. 13, 41 N. Y. S. 982. 36 Atl. 1123. "Shafer v. Eau Claire, 105 Wis. "» McNeil v. Barney, 51 Cal. 603; 239, 81 N. W. 409. Supreme Lodge, K. P. v. Lipscomb, SO " Alexander V. Bank of Lebanon, 19 Fla. 406, 39 So. 637; Owen v. Pal- Tex. Civ. App. 620, 47 S. W. 840. mour, 111 Ga. 885, 36 S. E. 969; Rice "Cone V. Citizens' Bank, 4 Kans. &c. Malting Co. v. International App. 470, 46 Pac. 414. Bank, 86 111. App. 136; Reynolds v. § 21 INSTRUCTIONS RULES. 3^ jury/^ Thus the court would overstep the Hne between law and fact by instructing that the jury can not return a verdict upon the testimony of one witness alone, as it is the jury's right to weigh such testimony in connection with all the other evidence in the case/^ or by instructing that certain evidence is more satisfactory and reliable than certain other evidence or that one class of testi- mony is to be believed in preference to another class,*^ or that the evidence is insufficient to sustain the declaration,^* or that the tes- timony is not "clear, cogent and convincing."^" The rule against comment and expression of opinion does not, as a general rule, depend on whether there is a conflict in the evidence.'^ In the state of Washington, however, where the trial court is forbidden by the Constitution to comment on the evidence, the inhibition is said to refer only to disputed matters of fact.*^ An instruction is objectionable, within the rule, when it tends to discredit a wit- ness or lessen the value of particular testimony.^* But an instruc- ■ tion is not open to objection as being on the weight of the evi- dence where it charges the jury upon the legal effect of admitted or uncontroverted facts.^" Further, as the trial judge, in ruling that evidence is admissible, in effect decides that it has a tendency to make out a case or defense, there can be no objection to his saying so in his charge.^" And, while the court may not instruct Cox, 11 Ind. 262; Western Maryland °* Winkler v. Chesapeake &c. R. Co., R. Co. V. Shivers, 101 Md. 391, 61 12 W. Va. 699. Atl. 618; Davis v. Jenney, 42 Mass. '"Ray v. Long, 132 N. Car. 891, 44 (1 Mete.) 221; Walts v. Walts, 127 S. E. 652. That certain evidence Mich. 607, 86 N. W. 1030 ; McCain v. might be considered a "strong circum- Smith, 172 Mich. 1, 137 N. W. 616; stance" against a party is improper. Webb V. Baldwin, 165 Mo. App. 240, Edwards v. St. Louis &c. R. Co., 166 147 S. W. 849; Hardesty v. Largey Mo. App. 428, 149 S. W. 321. Lumber Co., 34 Mont. 151, 86 Pac. «=Whitelaw v. Whitelaw, 83 Va. 40, 29; Kleutsch v. Security Mut. Life i S. E. 407. Ins. Co., 72 Nebr. 75, 100 N. W. 139; «'Lownsdale v. Gray's Harbor Boom Whitelaw v. Whitelaw, 83 Va. 40, 1 Co., 36 Wash. 198, 78 Pac. 904. S. E. 407; Harman v. Maddy Bros., "'Belt R. Co. v. Confrey, 111 111. 57 W. Va. 66, 49 S. E. 1009. App. 473. =" Richmond &c. R. Co. v. Noell, 86 «» Slayback v. Gerkhardt, 1 Mo. Va. 19, 9 S. E. 473. App. 333. '= Dawson v. Falls City Boat Club, °° Campau v. Langley, 39 Mich. 451, 125 Mich. 433, 84 N. W. 618. 33 Am. Rep. 414. '" Coulter V. B. F. Thompson Lum- ber Co., 142 Fed. 706. 33 PROVINCE OF COURT AND JURY. g 22 as to what any evidential fact proves or does not prove, or the Aveight to be given it, it is within his power to determine whether there is any evidence tending to estabHsh a fact in the case."^ Hence where the record fails to disclose any evidence tending to establish a defense to a subscription of stock sued for, the court may construe the instrument and instruct as to its legal effect and may tell the jury that "under the evidence, you should find for the plaintiff for the amount of the subscription, less any pay- ments which may be proven."^^ So the trial judge has the right to tell the jury what the claims of the respective parties are, and if, in doing so, he incidentally refers to the testimony, his state- ment will not necessarily amount to a charge on the weight of the evidence provided he does not indicate to the jury that the evidence establishes or tends to establish the claim of either party.°^ Further, the court may, without violation of the rule, explain to the jury the use of mortality and annuity tables by referring to a particular age which, according to the evidence, is approximately the age of one of the parties."'' So the court does not comment on the evidence where he gives the reason for the Avithdrawal of a cause of action by the plaintiff;"^ nor where he makes casual remarks in reference to the dates of documents in- troduced in evidence, and, so far as indicated by the evidence, the dates are correct.^" § 22, Comments and expressions of opinion as to preponder- ance o£ evidence. The province of the jury is invaded by instructions which express an opinion as to the preponderance of the evidence in a particular case."' An instruction that the jury "are at liberty to decide that the preponderance of the evidence is on the side which, in their " Beckner v. Riverside &c. Tpk. Co., " Lownsdale v. Gray's Harbor Boom ■65 Ind. 468. Co., 36 Wash. 198, 78 Pac. 904. "' Beckner v. Riverside &c. Tpk. "" McGhee v. Wells, 57 S. Car. 280, Co., 65 Ind. 468. 35 S. E. 529, 76 Am.' St. 567. "' Drumheller v. American Surety " Pennsylvania Co. v. Hunsley, 23 Co., 30 Wash. 530, 71 Pac. 25. Ind. App. Zl, 54 N. E. 1071 ; Stise v. "' Central of Georgia R. Co. v. Metropolitan St. R. Co., 80 App. Div. Duffy, 116 Ga. 346, 42 S. E. 510. 24, 80 N. Y. S. 513. But see Mont- 3 — Branson's Inst. § 23 INSTRUCTIONS RULES. 34 judgment, is sustained by the more intelligent and better in- formed, and the more credible and the more disinterested wit- nesses, whether these are the greater or the smaller number," is in effect telling them that greater weight is to be given to the testimony of the more intelligent and better informed, regardless of other considerations in the case/* So, while the jury may take into consideration, along with other facts and circumstances, the intelligence and credibility of the witnesses and their opportuni- ties of seeing and hearing the facts, it is beyond the court's do- main to tell the jury they "should" rather than "may" take into consideration such factors.'" It is a correct statement of the law, however, to inform the jury that if they find from the evidence the plaintiff has, by a preponderance of the evidence, proved the material allegations of his declaration, their verdict will be in his favor and there can be no valid objection, in this connection, to the use of the word "will" rather than "may."^ And where an instruction tells the jury that the evidence which convinces them most strongly of its truthfulness is of greater weight and does not assume to instruct as to how to determine the greater weight, whether by a larger or smaller number of witnesses, there can be no good ground for objection.^ § 23. Comments and expressions of opinion — Cases of con- tract and tort. The rule prohibiting the court from commenting on the gomery v. Seaboard Air Line R. Co., a matter of fact, the jury may con- Ti S. Car. S03, S3 S. E. 987. An in- sider the number, as well as any struction which tells the jury upon other factors or elements entering what facts and circumstances they into the case, in determining weight. shall determine the preponderance of Dallas Cotton Mills v. Ashley (Tex. the evidence invades the province of Civ. App.), 63 S. W. 160. the jury. Witt v. Gallemore, 163 111. ™W. H. Stubbings Co. v. World's App. 649. Where the court, in de- Columbian Exposition Co., 110 111. fining preponderance, says that "this App. 210. does not mean that there shall be a ^ Pennsylvania Co. v. Hunsley, 23 greater number of witnesses on one Ind. App. 37, 54 N. E. 1071. side than on the other," the impres- ' North Chicago St. R. Co. v. sion likely to be conveyed to the jury Zeiger, 78 111. App. 463. is that they may disregard the num- ° Indianapolis St. R. Co. v. Schom- ber of witnesses as bearing on the berg (Ind. App.), 71 N. E. 237. question of preponderance, while, as ^5 PROVINCE OF COURT AND JURY. § 23 weight of the evidence or intimating an opinion as to its weight, importance, or effect, applies with equal force to ac- tions of contract,^ and actions of tort.* Thus an instruction is objectionable as commenting on the evidence when it calls the jury's attention to certain specific facts in evidence and tells them that if they find such facts to be true they may infer a certain other fact unless the inference is over- thrown by other testimony.^ So, in an action on a note, the point at issue being the genuineness of the instrument, it is for the jury to determine such question and it is erroneous to instruct that evidence of handwriting "is of a character little worthy of credence" and that the jury may refuse to find the note to be genuine, from such evidence alone, where there is no proof as to consideration.^ In a suit on an insurance policy, however, a re- quested charge was: "If the agent, though mistaken, insures one person when he should have insured another, the person who should have been insured can not sue in an action at law on a contract of insurance that should have been made without first having the contract reformed and corrected in a court of equity." The court modified the charge by saying, "But I think you will not have any difficulty about going into the court of equity about reformation of the contract." It was held that the modified charge could not be construed as indicating the court's opinion as to the effect of the testimony.'^ Where the case is one of tort ^Venable v. Lippold, 102 Ga. 208, E. 632; Pittsburgh &c. R. Co. v. Ban- 29 S. E. 181, 40 L. R. A. 250, 66 Am. fill, 206 111. 553, 69 N. E. 499 ; Kinyon St. 167; Calvert Bank v. Katz, 102 v. Chicago &c. R. Co., 118 Iowa 349, 92 Md. 56, 61 Atl. 411; Henderson v. N. W. 40, 96 Am. St. 382; Butler v. Raymond Syndicate, 183 Mass. 443, 67 Detroit &c. R. Co., 138 Mich. 206, 101 N. E. 427; Hughes v. Meehan, 81 N. W. 232 ; Lingle v. Scranton R. Co., Minn. 482, 84 N. W. 331; Harring- 214 Pa. 500, 63 Atl. 890; Louisville ton V. Butte &c. Min. Co., 33 Mont. &c. R. Co. v. Bohan, 116 Tenn. 271 330, 83 Pac. 467, 114 Am. St. 821; 94 S. W. 84; Collins v. Chipman Miller V. Southern R. Co., 69 S. Car. 41 Tex. Civ. App. 563, 95 S. W. 666. 116, 48 S. E. 99; Hunkins v. Milwau- "^ Smith v. Woodmen of the World, kee &c. R. Co., 30 Wis. SS9. 179 Mo. 119, 77 S. W. 862. 'McDonough v. Williams, 77 Ark. "Rose v. Vandercar, 21 111. App 261, 92 S. W. 783, 8 L. R. A. (N. S.) 345. 452; Quint v. Dimond, 147 Cal. 707, 'Montgomery v. Delaware Ins. 82 Pac. 310; Seaboard Air Line R. Co., 67 S. Car. 399, 45 S. E. 934, 100 Co. v. Johnson, 139 Ga. 471, 77 S. Am. St. 750. § 24 INSTRUCTIONS RULES. 36 and involves a question of negligence, it is the right of the jury- to determine the question of due care or negligence after a con- sideration of the whole evidence and the court may not tell the jury what facts would, or would not, constitute negligence,^ or contributory negligence." There is, therefore, no error in refus- ing to instruct, as a matter of law, that plaintiff was not negligent in attempting to drive across a track if he judged at the time it could be safely done." So, as it is the duty of a railroad com- pany to stop its trains at a station, the question whether, in a par- ticular case, a train was so stopped is for the jury, and the court is not at liberty to charge as to what distance past the usual stop- ping place a train may go." And so, where the principal point at issue is whether there was any defect in a locomotive and whether the air brakes were applied, an instruction is highly prejudicial which tells the jury that the evidence introduced tend- ing to show the alleged defective condition of the brake valve could not have been the proximate cause of the accident and was not a valid defense.^^ § 24. Comments and expressions of opinion — Criminal cases. The rule prohibiting comments on the evidence,^^ or ex- pressions of opinion as to its weight, importance, or effect,^* 'Engle V. Frank Parmalee Co., 169 mony is corroborative of other testi- 111. App. 410. mony is a comment on the weight of "Vittum V. Drury, 161 III. App. the evidence. State v. Keerl, 29 603. Mont. 508, 75 Pac. 362, 101 Am. St. "Rubinovitch v. Boston El. R. Co., 579. Not a comment on the evidence 192 Mass. 119, 11 N. E. 895. to charge that the jury in the case of " Cooper V. Georgia &c. R. Co., 61 the defendant may consider the great S. Car. 345, 39 S. E. 543. interest he has in the result of their "Louisville &c. R. Co. v. Bohan, verdict. State v. Carey, 15 Wash. 116 Tenn. 271, 94 S. W. 84. 549, 46 Pac. 1050. " Hampton v. State, 50 Fla. 55, 39 " Hall v. State, 134 Ala. 90, 32 So. So. 421; State v. Shuff, 9 Idaho 115, 750; Hurley v. Territory, 13 Ariz. 2, 72 Pac. 664; People V.Jones, 24 Mich. 108 Pac. 222; Blanton v. State, S2 215; State v. Smith, 53 Mo. 267; Fla. 12, 41 So. 789; Stephenson v. State V. Shelton, 223 Mo. 118, 122 S. State, 40 Ga. 291; Tiget v. State, 110 W. 732; State v. RolHns, 226 Mo. Ga. 244, 34 S. E. 1023; Dozier v. 524, 126 S. W. 478; Green v. State, State, 116 Ga. 583, 42 S. E. 762; 60 Tex. Cr. 530, 132 S. W. 806; State Dyer v. State, 6 Ga. App. 390, 65 v. Vance, 29 Wash. 435, 70 Pac. 34. S. E. 42; State v. Hopkins, SO La. A charge stating that certain testi- Ann. 1171, 24 So. 188; People v. Dur- PROVINCE OF COURT AND JURY. 24 applies with equal force to instructions given by the court in criminal prosecutions. The functions of the jury are invaded by instructions on the weight or sufficiency of the evidence. ^° There is such an invasion by instructions as to the weight and conclusiveness of dying dec- larations;^" the conclusiveness of evidence of previous good or ham, 170 Mieh. 598, 136 N. W. 431; State V. Mahoney, 24 Mont. 281, 61 Pac. 647; Havill v. State, 7 Okla. Cr. 22, 121 Pac. 794; Collegenia v. State (Okla. Cr.), 132 Pac. 375; State v. Rader, 62 Ore. 37, 124 Pac. 19S; Best V. State, 58 Tex. Cr. 327, 125 S. W. 909; Dejarnette v. Commonwealth, 75 Va. 867; State v. Allen, 45 W. Va. 65, 30 S. E. 209. Not an expression of opinion that the law presumes every act which is of itself unlawful to be criminally intended until the contrary appears. Brundage v. State, 7 Ga. App. 726, 67 S. E. 1051. Court should exercise utmost care where hu- man life is involved not to let any ex- pression fall capable of being inter- preted by the jury as an index of what he thinks of the prisoner, his counsel or his case. Mathis v. State, 45 Fla. 46, 34 So. 287. A charge that if confessions were so contradic- tory in themselves that they could not be reconciled, they might be dis- regarded, was on the weight of evi- dence, since the fact that they were contradictory would not affect their admissibility, but would only go to their weight as evidence. Goode v. State, 57 Tex. Cr. 220, 123 S. W. 597. '= Smith V. State, 165 Ala. SO, 51 So. 610; Stephens v. State, 1 Ala. App. 159, 55 So. 940; Montgomery v. State, 2 Ala. App. 25, 56 So. 92 ; Tice V. State, 3 Ala. App. 164, 57 So. 506; Douglass V. State, 91 Ark. 492, 121 S. W. 923, 134 Am. St. 83; Benson V. State, 103 Ark 87, 145 S. W. 883; People v. Barthleman, 120 Cal. 7, 52 Pac. 112; Doyle v. State, 39 Fla. 155, 22 So. 272, 63 Am. St. 159; Green v. State, 43 Fla. 556, 30 So. 656; State V. Marren, 17 Idaho 766, 107 Pac. 995, 134 Am. St. 286; People v. Will- iams, 240 111. 633, 88 N. E. 1053 ; Peo- ple V. McCann, 247 111. 130, 93 N. E. 100; Safer v. State, 56 Ind. 378; Peo- ple V. Gastro, 75 Mich. 127, 42 N. W. 937; State v. Devorss, 221 Mo. 469, 120 S. W. 75 ; State v. Hall, 228 Mo. 456, 128 S. W. 745 ; State v. Cannon, 232 Mo. -205, 134 S. W. 513, Ann. Cas. 1912 B, 1043 ; State v. Reed, 237 Mo. 224, 140 S. W. 907; State v. Ma- honey, 24 Mont. 281, 61 Pac. 647; Clarence v. State, 86 Nebr. 210, 125 N. W. 540; Williams v. State (Okla. Cr.), 131 Pac. 179; Coffman v. State, 56 Tex. Cr. 75, 119 S. W. 1148; Rob- erts V. State, 60 Tex. Cr. 20, 129 S. W. 611; Crowell v. State (Tex. Cr.), 148 S. W. 570 ; State v. Greer, 22 W. Va. 800, 46 Am. Rep. 550. Invasive as on the weight of the evidence to charge that "the doctrine of self-de- fense is a defensive and not an of- fensive right and is limited to preven- tion and necessity." Coker v. State, 59 Tex. Cr. 241, 128 S. W. 137. '"People V. Amaya, 134 Cal. 531, 66 Pac. 794; State v. McCanon, 51 Mo. 160; State v. Dipley, 242 Mo. 461, 147 S. W. 111. Instruction does not deal with the weight of the evidence which tells the jury that dying dec- larations stand on the same plane as testimony given under oath. Josey v. State, 137 Ga. 769, 74 S. E. 282. The fact that the dying declaration intro- §24 INSTRUCTIONS RULES. 38 bad character;" the weight or value of circumstantial evidence as compared with direct evidence ;^^ the inference to be drawn from testimony when it is susceptible of more than one rational conclusion;^* the weight of corroborating evidence;^*" the proba- tive value of impeaching testimony ;^^ that failure to show a mo- tive for homicide is a circumstance in favor of defendant to be considered by the jury f"^ that evidence of an alibi is evidence of a suspicious character f^ that certain evidence has a certain tend- ency;"* that certain presumptions arise from stated facts;"* that there is a presumption of guilt from flight;"" that extravagant acts, nervousness, sleeplessness, and restlessness are symptoms duced as evidence was taken down by an attorney representing the state at the trial would not warrant a charge requiring the jury to scrutinize such declaration carefully for that reason. Parker v. State, 165 Ala. 1, 51 So. 260. "State V. Jones, 32 Mont. 442, 80 Pac. 1095. There was an invasion by an instruction that "it was more prob- able that a man of bad character would commit a crime than a man of good character." Long v. State, 76 Ark. 493, 89 S. W. 93. "People V. Howland, 13 Cal. App. 363, 109 Pac. 894; State v. Marren, 17 Idaho 766, 107 Pac. 993, 134 Am. St. 286. "Harrell v. State, 166 Ala. 14, 52 So. 345; Simmons v. State, 171 Ala. 16, 54 So. 612; Pearce v. State, 4 Ala. App. 32, 58 So. 996; Saucier v. State, 102 Miss. 647, 59 So. 858; Cro- means v. State, 59 Tex. Cr. 611, 129 S. W. 1129. ^Kent V. State, 64 Ark. 247, 41 S. W. 849; Coley v. State, 110 Ga. 271, 34 S. E. 845 ; Croft v. Commonwealth, 81 Ky. 250, 50 Am. Rep. 160; People V. O'Farrell, 17S N. Y. 323, (>1 N. E. 588, 96 Am. St. 628; Hill v. Ter- ritory, IS Okla. 212, 79 Pac. 757. ■^Strong V. State, 61 Nebr. 35, 84 N. W. 410. ""Ince V. State, 11 Ark. 418, 88 S. W. 818; People v. Glaze, 139 Cal. 154, 72 Pac. 965; People v. Wilkins, 158 Cal. 530, 111 Pac. 612. ="Line V. State, 51 Ind. 172. =* People V. Coughlin, 67 Mich. 466, 35 N. W. 72. But see People v. Walker, 85 App. Div. 556, 83 N. Y. S. 372. It is not error to instruct that there is some evidence tending to prove a certain fact where there is no doubt of such evidence having been given and its weight and sig- nificance are left to the jury. White V. State, 153 Ind. 689, 54 N. E. 763. ''Tines v. Commonwealth, 25 Ky. L. 1233, n S. W. 363. But see New- by v. People, 28 Colo. 16, 62 Pac. 1035. Invasion by instruction that malice from the use of a deadly wea- pon could not be presumed in the case. Thayer v. State, 138 Ala. 39, 35 So. 406. Instruction invasive that where such means are used as are likely to produce death the legal pre- sumption is that death was intended. Nilan V. People, 27 Colo. 206, 60 Pac. 485. An instruction was on the weight of evidence which told the jury that they might presume an agency in a sale of liquor from the circumstances shown. Brann v. State (Tex. Cr.), 39 S. W. 940. =» State V. Osborne, 54 Ore. 289, 103 39 PROVINCE OF COURT AND JURY. §25 of insanity.^' A charge on the weight of evidence favorable to accused is no more proper than one unfavorable to him.^* An instruction applying the law to the facts does not charge on the weight of the evidence.^' § 25. Comments and expressions of opinion — Common-law rule and rule in federal courts. An expression of opinion on a disputed question of fact by the court in the charge is allowed in the federal courts and the courts of those states which closely follow the common law, provided the jury are told that they are the exclusive judges of the facts and are not bound by the opinions of the court on the facts/" In these jurisdictions the principle is the same in both civil and criminal cases.^^ The matter of the expression of the opinion is discretionary and the court can not be required to state it.^^ The fact that the Pac. 62. Instruction which leaves the fact of flight of defendant to the jury and instructs as to the effect of flight is not invasive. State v. Lem Woon, 57 Ore. 482, 107 Pac. 974, il L. R. A. (N. S.) 332. "Porter v. State, 13S Ala. 51, ii So. 694. "^ Burns v. State (Tex. Cr.), 145 S. W. 356; Carver v. State (Tex. Cr.), 148 S. W. 746. ^Carroll v. State (Tex. Cr.), 81 S. W. 294. '"Illinois Cent. R. Co. v. Davidson, 76 Fed. 517; Vanarsdale v. Hax, 107 Fed. 878; Lesser Cotton Co. v. St. Louis &c. R. Co., 114 Fed. 133, 57 L. R. A. 700; Kerr v. Modern Woodmen, 117 Fed. 593; Freese v. Kemplay, 118 Fed. 428; Comstock's Appeal, 55 Conn. 214, 10 Atl. 559; Cook v. M. Steinert &c. Co., 69 Conn. 91, 36 Atl. 1008; McLaughlin v. Thomas, 86 Conn. 252, 85 Atl. 370; Blumeno v. Grand Rapids &c. R. Co., 101 Mich. 325, 59 N, W. 594; Bonness v. Fel- sing, 91 Minn. 227, 106 N. W. 909, 114 Am. St. 707; Bonner v. Herrick, 99 Pa. 220; Missisquoi Bank v. Evarts, 45 Vt. 293; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853. "Hart V. United States, 84 Fed. 799; Eidleman v. United States, 86 Fed. 456 ; Brown v. United States, 142 Fed. 1; Keller v. United States, 168 Fed. 697 ; Garst v. United States, 180 Fed. 339; Kettenbach v. United States, 202 Fed. 377; State v. Mann, 75 Conn. 55, 52 Atl. 257; State v. Cabando, 83 Conn. 160, 76 Atl. 42; State v. Simon, 71 N. J. L. 142, 58 Atl. 107; Smith v. Valentina, 71 N. J. L. 552, 60 Atl. 177 ; Lappe v. Gf el- ler, 211 Pa. 462, 60 Atl. 1049. It is only permissible for a federal judge to express an opinion on the facts when it is based upon evidence in the case. Mullen v. United States, 106 Fed. 892. "^Van Ness v. Pacard, 2 Pet. (U. S.) 137, 7 L. ed. 374; Breese v. United States, 106 Fed. 680; Temple V. Gilbert, 86 Conn. 252, 85 Atl. 370; Philadelphia &c. R. Co. v. Hagan, 47 § 26 INSTRUCTIONS RULES. 4O opinion of the court is erroneous, is usually held not ground for reversal where the jury have been distinctly told that the opin- ion of the court has no binding force and they are at full liberty to disregard it.^^ The federal courts may exercise the power to express opinions on the evidence though the practice is forbidden by the constitution or laws of the state in which the case is tried.^* "A state constitution can not, any more than a state statute, pro- hibit the judges of the courts of the United States from charging juries with regard to matters of fact."^° § 26. Weight of admissions of parties. The weight to be accorded to the admissions of the parties belongs exclusively to the jury.'"' An admission of a party is simply a part of the evidence and is to be taken by the jury for what it may be worth, as the facts and circumstances may warrant.^^ Hence it is not error to refuse to instruct that "while proof of the fact that admissions were made, and of the terms in which they were made, ought to be cautiously scanned, yet when deliberately made and precisely identified, they are usually received as satisfactory" and that "admissions by parties are not to be re- garded as an inferior kind of evidence — on the contrary, when satisfactorily proved they constitute a ground of belief on which the mind reposes with strong confidence. "^^ And so the court may refuse to instruct that particular admissions may be re- garded as "strong" evidence.'"' The rule that the weight and probative effect of admissions is for the jury has like application in criminal prosecutions.^" Pa. 244, 86 Am. Dec. S41 ; Stevens v. '' St. Louis &c. R. Co. v. Vickers, Talcott, 11 Vt. 25; Doon v. Ravey, 122 U. S. 360, 30 L. ed. 1161. 49 Vt. 293. , *■ Rumrill v. Ash, 169 Mass. 341, ^ Oyster v. Longnecker, 16 Pa. 269 ; 47 N. E. 1017. Knapp V. Griffin, 140 Pa. 604, 21 Atl. ^ Phoenix Ins. Co. v. Gray, 113 Ga. 449. 424, 38 S. E. 992. '*Nudd V. Burrows, 91 U. S. 426, ''Phoenix Ins. Co. v. Gray, 113 Ga. 23 L. ed. 286; Indianapolis &c. R. Co. 424, 38 S. E. 992. V. Horst, 93 U. S. 291, 23 L. ed. 898; ='Earp v. Edgington, 107 Tenn. 23, Vicksburg &c. R. Co. v. Putnam, 118 64 S. W. 40. U. S. 54S, 30 L. ed. 257; St. Louis "State v. Fleming, 17 Idaho 471, &c. R. Co. V, Vickers, 122 U. S. 360, 100 Pac. 305 ; State v. Shorter, 85 S. 30 L. ed. 1161. Car. 170, 67 S. E. 131. Erroneous to 41 PROVINCE OF COURT AND JURY. § 2/ § 27. Weight of expert testimony. Expert testimony, when admissible at all, must go to the jury like any other testimony in the case without discrimina- tion by the court as to its weight.*^ The court determines in the first instance whether a witness is competent to testify as an expert, but when he is allowed to do so, his evidence is substantially on the same footing, as to credi- bility, as the evidence of any other witness.*^ Consequently, the court acts prejudicially in instructing that the testimony of ex- perts "is usually of very little value in determining the sanity or insanity of a party" and that their opinions "are not so highly regarded now as formerly,"*' or that the testimony of experts is "not as good evidence of a fact as the testimony of a credible witness or witnesses who testify to having seen the fact itself occur."** Whether expert evidence is strong or weak depends upon the skill and character of the witness, his opportunities for acquiring information and all the attendant facts and circum- stances of the case. Great or little importance may be attached to it and the jury have the right to determine its value without any influencing instruction. *° It is therefore error to instruct that, "while the opinion of an expert is competent to go to the jury on an issue involving the genuineness of a written instru- ment, yet such evidence is intrinsically weak and ought to be re- ceived and weighed by the jury with great caution,"*^ or that "it is your own opinion upon the matter, and the conclusions you instruct that if the jury find that any 23 So. 369; Nelson v. McLellan, 31 statements of the defendant have been Wash. 208, 71 Pac. 747, 60 L. R. A. proven by the state and not denied by 793, 96 Am. St. 902. the defendant, they are to be taken *^Eggers v. Eggers, 57 Ind. 461. as admitted to be true for such a "Eggers v. Eggers, 57 Ind. 461. charge is equivalent to a charge that " Nelson v. McLellan, 31 Wash. 208, defendant must specifically deny every 71 Pac. 747, 60 L. R. A. 793, 96 Am. statement attributed to him. State v. St. 902. Hollingsworth, 156 Mo. 178, 56 S. W. "Coleman v. Adair, 75 Miss. 660, 1087, 79 Am. St. 515. 23 So. 369. "Wall V. State, 112 Ga. 336, 2,7 S. * Coleman v. Adair, 75 Miss. 660, E. 371 ; Eggers v. Eggers, 57 Ind. 23 So. 369. 461; Coleman v. Adair, 75 Miss. 660, § 28 INSTRUCTIONS RULES. 42 draw from the facts proven, that should determine yotir verdict, and not what any other person says or thinks."" § 28. Weight of circumstantial and negative evidence. The question of the comparative weight (I) of direct and circumstantial evidence, (2) or of positive and negative evidence, is for the jury and the court may not infringe on this prerogative by expressions of opinion as to the matter with reference to the evidence adduced. ( 1 ) Circumstantial evidence, in a given case, may be of more or less weight than direct evidence, depending upon the facts in the particular instance, and it is for the jury to determine the comparative value of the two after considering all the facts.*' The rule is the same in criminal cases.*' Accordingly, a charge that "circumstantial evidence is just as good and just as convinc- ing and just as reliable as direct and positive evidence, when properly linked together," is a prejudicial determination of the question by the court.°° (2) It is a trespass upon the rights of the jury to instruct, un- qualifiedly, that positive testimony is entitled to greater weight than negative, as the jury may properly attach more importance to either one, as the facts adduced may seem to justify.^^ " Ball V. Hardesty, 38 Kans. 540, stantial evidence is not on the weight 16 Pac. 808. of the evidence. Suggs v. State (Tex. ''Hudson V. Best, 104 Ga. 131, 30 Cr.), 143 S. W. 186. The court should S. E. 688; Armstrong v. Penn, 105 not charge that circumstantial evi- Ga. 229, 31 S. E. 158. dence is legal and competent evidence " McAlister v. State, 99 Ark. 604, as the jury has no concern with the 139 S. W. 684; Brady v. Common- competency or legality of the evidence wealth, 74 Ky. 282; Cook v. State submitted by the court. Williams v. (Okla. Cr.), 132 Pac. 507; State v. State, 95 Miss. 671, 49 So. 513. Aughtry, 49 S. Car. 285, 26 S. E. "Hudson v. Best, 104 Ga. 131, 30 619; State v. Johnson, 66 S. Car. 23, S. E. 688. 44 S. E. 58; Schwantes v. State, 127 "'Sumpter v. State, 45 Fla. 106, 33 Wis. 160, 106 N. W. 237. Not preju- So. 981 ; Cowart v. State, 120 Ga. dicial for court to charge that the 510, 48 S. E. 198; State v. Kansas evidence before the jury is both direct City &c. R. Co., 70 Mo. App. 634; and circumstantial. Davis v. State, Milligan v. Chicago &c. R. Co., 79 Mo. 51 Nebr. 301, 70 N. W. 984. A charge App. 393 ; Haun v. Rio Grande West- that the possession of recently stolen ern R. Co., 22 Utah 346, 62 Pac. 908. property may be proved by circum- 43 PROVINCE OF COURT AND JURY. § 29 Thus, while it is ordinarily true, in point of fact, that positive testimony is stronger than negative, yet it can not be said, as a matter of law, that positive necessarily overbalances negative testimony. Whether it does so must depend upon the particular circumstances.'^ Consequently, the trial court acts rightly in re- fusing to instruct that "it is the duty of the jury, in passing upon the weight and effect to be given by them to the evidence in the cause, to give to testimony of a positive or affirmative character greater weight than to that simply of a negative character, pro- vided the witnesses testifying affirmatively to a given fact are not shown to be unworthy of belief by other facts, and circum- stances in the case."'^ And as the jury should be left free to exercise its judgment as to the weight to be accorded to testi- mony, it follows that unless the jury believe that affirmative testi- mony, in a particular case, is of greater weight than the negative evidence brought out upon the trial, such affirmative testimony can not be said to be of a higher character.^* So where the wit- nesses testifying positively and negatively are of equal credibility and have an equal means of information as to a fact in contro- versy, it can not be said that the positive testimony should receive greater weight than the negative.'" And it is error to charge that "the existence of a fact testified to by one positive witness is to be believed rather tha-n such fact did not exist because many witnesses who had the same opportunity of observation swore they did not see or know of its having transpired.'"'' § 29. Credibility of witnesses for jury. The credibility of witnesses is for the jury and this function may not be infringed by instructions which disparage the tes- timony of witnesses or which minimize its value.'' The rule is violated where the court indicates a lack of con- '^ State V. Kansas City &c. R. Co., is of a higher character than the neg- 70 Mo. App. 634. ative testimony of witnesses that they °' State V. Kansas City &c. R. Co., did not hear the whistle blown or the 70 Mo. App. 634. bell rung." Haun v. Rio Grande W. "Erroneous to instruct the "posi- R. Co., 22 Utah 346, 62 Pac. 908. tive testimony of credible witnesses "' Milligan v. Chicago &c. R. Co., who were in a situation to know 79 Mo. App. 393. whether the whistle was blown or ™ Southern R. Co. v. O'Bryan, 115 the bell rung, to the effect that the Ga. 659, 42 S. E. 42. whistle was blown and the bell rung, " Southern R. Co. v. Ellis, 6 Ala. § 29 INSTRUCTIONS RULES. 41 fidence in the testimony of a particular witness or intimates that it does not beheve him/* or where the jury are told that a witness has been impeached/'' or not impeached,"" or that they may re- ject the testimony of a witness if they believe he has been im- peached/^ or that they may give consideration to the fact that a witness is a party to the suit/^ or that they "should" take into consideration the intelligence of the several witnesses/^ or that greater weight is to be attached to the testimony of witnesses whose means of information is superior/* or that a single state- ment made by a witness may be regarded as a mistake, and that full credence may be given to his testimony in other respects,''' or, while bias or ill will are always factors to be taken into ac- count by the jury, to instruct that but little weight should be given to the veracity of a witness because of his ill will,'"^ or to charge that it is the duty of the jury "to believe that witness who has the least inducement to swear falsely and the best means of knowing the facts about which he testifies,""^ or that the law pre- sumes an unimpeached witness has spoken the truth,"'' or that, where a witness is unimpeached, the jury should not allow re- marks of counsel in assailing the witness to influence them/'^ App. 441, 60 So. 407; Reed v. Mc- " Winklebleck v. Winklebleck, 160 Cready, 170 Mich 532, 136 N. W. 488 ; Ind. 570, 67 N. E. 451. Holman v. Boston &c. R. Co., 76 N. °= Citizens' St. R. Co, v. Burke, 98 H. 496, 84 Atl. 979. Tenn. 650, 40 S. W. 1085. '"Williams v. West Bay City, 119 =" Norwood v. State, 118 Ala. 134, Mich. 395, 78 N. W. 328. 24 So. 53. An instruction that the °° Huntingburg v. First, 22 Ind. App. jury must take into consideration the 66, 53 N. E. 246. interest, appearance, bias or preju- "'' Berliner v. Travelers' Ins. Co., 121 dice, of witnesses if any shown, is Cal. 451, 53 Pac. 922. calculated to unduly impress on the °' Kornazsewska v. West Chicago jury that the judge has in mind some St. R. Co., 76 111. App. 366. No mat- suspicion regarding the testimony of ter how thoroughly a witness may be some witnesses. Tippecanoe Loan impeached, his credibility is for the &c. Co. v. Jester (Ind.), 101 N. E. jury, and it is improper to charge 915. them to disregard his testimony, if "Hudson" v. Best, 104 Ga. 131, 30 reasonably satisfied that he has been S. E. 688. successfully impeached. Lay v. Full- "' Chicago Union Trac. Co. v. er (Ala.), 59 So. 609. O'Brien, 219 111. 303, 76 N. E. 341. "' Copeland v. American Cent. Ins. ''" Chicago Union Trac. Co. v. Co., 158 Mo. App. 338, 138 S. W. 557. O'Brien, 219 111. 303, 76 N. E. 341. "^Pennsylvania Co. v. Hunsley, 23 Ind. App. 37, 54 N. E. 1071. 45 PROVINCE OF COURT AND JURY. g 29 But an instruction is free frpm objection which merely tells the jury they are at liberty to withhold credence where they believe the witness was in error or has not spoken the truth/" or which ■informs the jury that the uncontradicted testimony of an unim- peached witness is not to be ignored,'^ or which points out fairly and impartially the intrinsic probability or improbability of testi- mony, leaving the jury to determine the question of credibility," or which tells the jury that "a person's reputation for truth is made by what his neighbors generally say of him in this regard — if they generally say he is untruthful, that makes his general reputation for truth bad ; on the other hand, if they say nothing whatever about him as to his truthfulness, that is evidence that his general reputation for truth is good."" The court invades the province of the jury when it instructs on the weight to be attached to the testimony of a witness or group of witnesses or a certain class of evidence.''* Thus it is error to instruct that the "quality" of the evidence is to be considered as well as the num- ber of witnesses, since the word "quality" may imply better evi- dence and it is for the jury to say whether the evidence of the greater number or the minority is to be treated as better evi- dence.''* It is not an invasion of the jury's province, however, where the jury are instructed to "weigh the evidence carefully and consider it all together ;" that they "should not pick out any particular fact in evidence or any particular statement of any witness and give it undue weight," but that if they "believe any witness on either side of this case has wilfully testified falsely on any material matter," then the jury "have a right to disregard the entire testimony of such witness unless the witness is cor- roborated by other reliable evidence."'" "Goss Print. Press Co. v. Lempke, "Jones v. Casler, 139 Ind. 382, 38 90 111. App. 427. T "' DeLong v. Giles, 11 111. App. 33. Pac. 650; Purdy v. People, 140 111. "'Alabama Great So. R. Co. v. 46, 29 N. E. 700; DeLong v. Giles, Johnston, 128 Ala. 283, 29 So. 771; 11 111. App. 33; Kirchner v. Collins, Moore v. Nashville &c. R. Co., 137 152 Mo. 394, 53 S. W. 1081 ; Crutch- Ala. 495, 34 So. 617. field V. Richmond &c. R. Co., 76 N. "'Moore v. Nashville &c. R., 137 Car. 320. Ala. 495, 34 So. 617. ^Kirchner v. Collins, 152 Mo. 394, "'Fidelity Mut. Life Assn. v. Jef- 53 S. W. 1081. fords, 107 Fed. 402, S3 L. R. A. 193. '" Renaud v. Bay City, 124 Mich. 29, 82 N. W. 617. 49 PROVINCE OF COURT AND JURY. § 32 no error in a case where the court pointed to the extreme youth of a witness — a boy eight years old — as a circumstance affecting credibiHty, together with the conduct of the child's mother in talking over his probable testimony on the day preceding the trial, without directing the jury how to find the facts, but leav- ing the question of weight to the jury.°^ Further, the court may comment on character to the extent of saying that one of the wit- nesses is "a well-known and capable member of the bar,'"'^ or a minister of the gospel.'' So, the court may charge that the credi- bility of a witness is not to be tested by his color or race.°^ It is held not an infringement of the prerogatives of the jury for the court to direct the jury to weigh with caution the evidence of a weak-minded witness.** § 32. Credibility of witnesses — Interested witnesses. The effect of interest of a party on his credibility is wholly for the jury to consider and an instruction which discredits the testimony of a witness on the ground of his interest in the cause of action deprives the jury of their right, to that extent, to be the sole judges of the credibility of witnesses.^ It is always competent for the jury to believe or disbelieve a witness, wholly irrespective of any interest he may or may not have in the litigation, and this right would be taken from hira should the court tell them to give less weight to the testimony °' Banks v. Connecticut R. &c. Co., Co. v. McDermott, 25 Nebr. 714, 41 79 Conn. 116, 64 Atl. 14. N. W. 648; Duygan v. Third Avenue °° Holmes v. Montauk Steamboat R. Co., 6 Misc. 66, 26 N. Y. S. 79; Co., 93 Fed. 731. Willis v. Whitsitt, 67 Tex. 643, 4 S. "Sneed v. Creath, 8 N. Car. 309. W. 253. An instruction that the °'McDaniel v. Monroe, 63 S. Car. weight of the testimony of a witness 307, 41 S. E. 456. depends upon his disinterestedness in " Lowe V. Herald Co., 6 Utah 175, the result of the suit and his freedom 21 Pac. 991. from bias, though close to the line, 'Douglass V. Fullerton, 7 111. App. has been held not to warrant a re- 102; Nelson v. Vorce, 55 Ind. 455; versal where there was nothing to Duvall V. Kenton, 127 Ind. 178, 26 N. show that it was more prejudicial to E. 688; Bonnell V. Smith, 53 Iowa 281, one party than the other. Hess v. 5 N. W. 128; Allen v. Lyles, 35 Miss. Lowrey, 122 Ind. 225, 23 N. E. 156, 513 ; Kansas City &c. R. Co. v. Daw- 7 L. R. A. 90, 17 Am. St. 355. ley, 50 Mo. App. 480; Omaha Belt R. 4 — Branson's Inst. § 32 INSTRUCTIONS RULES. 50 of an interested than of a disinterested witness.^ The rule is the same as to relatives of interested witnesses/ While the jury may disbelieve the testimony of a party litigant, they may not wholly ignore it without first weighing and considering it in the light of the other evidence and of the attending circumstances.* The court was right where it declined to instruct that "in weigh- ing the evidence the jury are to remember that the plaintiff is the most interested party in the controversy ; they are to receive his evidence, therefore, with caution as being that of a partial wit- ness; and they are empowered to reject any evidence which is uncorroborated, even though it be uncontradicted."^ Even where an instruction on the question of interest is otherwise unobjec- tionable, the jury should be told that they "may," rather than that they "should," take into consideration the interest of a witness in the result of the suit." It is equally a violation of the rule for the court to tell the jury that the testimony of an interested party is true, though not contradicted.'^ Where, however, an instruction as to interest as affecting credibility is general and not limited, in its operation to any particular witness or witnesses, it is within the court's province to give it.^ The court may, with propriety, instruct that, in deliberating upon the evidence, the interest of the witnesses may be considered by the jury, where at the same time the jury are admonished that no unfair inference is raised by the fact of the witnesses' employment by one of the parties =■ Louisville &c. R. Co. v. Watson, "Lynch v. Bates, 139 Ind. 206, 38 90 Ala. 68, 8 So. 249. N. E. 806. The proper instruction as 'Nelson v. Vorce, 55 Ind. 455; to interest is that it "may" and not Unruh v. State, 105 Ind, 117, 4 N. E. that it "does" affect credibility of the 453. witness. Davis v. Central R. Co., 60 * Hence where there is no charge Ga. 329. or requested charge as to the jury's 'Turner v. Grobe, 24 Tex. Civ. App. province in sifting the evidence and 554, 59 S. W. 583. determining questions of credibility, * Lynch v. Bates, 139 Ind. 206, 38 an instruction that the jury "may N. E. 806; Kavanaugh v. Wausau, disregard entirely the plaintiff's tes- 120 Wis. 611, 98 N. W. 550. An in- timony, inasmuch as he is an inter- struction that, in passing upon the ested witness" is rightfully refused, credibility of plaintiff's testimony, the Irwin v. Metropolitan St. R. Co., 25 jury may properly consider his in- Misc. 187, 54 N. Y. S. 195. terest in the result of the trial, the ° Colortype Co. v. Williams, 78 Fed. temptation under the circumstances 450, 24 C. C. A. 163. to color his testimony favorably to 51 PROVINCE OF COURT AND JURY. 33 to the action/ Nor is it an invasion of the province of the jury to tell them that in determining the weight to be accorded to the testimony of a defendant in a criminal case they may take into consideration the testimony of all the other witnesses and also such facts and circumstances as are in proof in the case.^° § 33. Credibility of witnesses in criminal cases. The jury in criminal cases are the exclusive judges of the credibility of the witnesses appearing before them and this prerogative may not be usurped by the court in his instruc- tions.^^ Under this rule it is for the jury and not the court to pass himself, and everything bearing on the subject, and give such evidence such weight only as, in their judg- ment, it was entitled to, and that a like test should be applied to evidence of each of the witnesses who testi- fied in the case, has been held a cor- rect statement of a legal principle and not to infringe upon the province of the jury. Kavanaugh v. Wausau, 120 Wis. 611, 98 N. W. SSO. "Lovely v. Grand Rapids &c. R. Co., 137 Mich. 653, 100 N. W. 894. "Rhea v. United States, 6 Okla. 249, SO Pac. 992. "Kennedy v. State, 147 Ala. 687, 40 So. 6S8 ; Turner v. State, 160 Ala. 40, 49 So. 828; McCoy v. State, 170 Ala. 10, 54 So. 428; Pearce v. State, 4 Ala. App. 32, 58 So. 996; Snead v. State, 7 Ala. App. 118, 61 So. 473; James v. State, 94 Ark. 514, 127 S. W. 733, 140 Am. St. 141; Marshall v. State, 101 Ark. 155, 141 S. W. 755; Benson v. State, 103 Ark. 87, 145 S. W. 883; Curl V. State, S3 Colo. 578, 127 Pac. 951; Waycaster v. State, 136 Ga. 95, 70 S. E. 883; Union v. State, 7 Ga. App. 27, 66 S. E. 24 ; State v. Marren, 17 Idaho 766, 107 Pac. 993, 134 Am. St. 286; Hauser v. People, 210 111. 253, 71 N. E. 416; People v. Jacobs, 243 111. 580, 90 N. E. 1092 ; People v. Mc- Cann, 247 111. 130, 93 N. E. 100; Cotner v. State, 173 Ind. 168, 89 N. E. 847; State v. Todd, 110 Iowa 631, 82 N. W. 322; State v. Brown, 152 Iowa 427, 132 N. W. 862; Hale v. Commonwealth, 151 Ky. 639, 152 S. W. 773; State v. Bazile, 50 La. Ann. 21, 23 So. 8; State v. McKenzie, 177 Mo. 639, 76 S. W. 1015; State v. Hall, 228 Mo. 456, 128 S. W. 745; State V. Jones, 32 Mont. 442, 80 Pac. 1095 ; State v. Morrison, 46 Mont. 84, 125 Pac. 649; Howell v. State, 61 Nebr. 391, 85 N. W. 289; Parker v. State, 67 Nebr. 555, 93 N. W. 1037; Bunge v. State, 87 Nebr. 557, 127 N. W. 899; Havill v. State, 7 Okla. Cr. 22, 121 Pac. 794; Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655 ; Edgar V. State, 59 Tex. Cr. 491, 129 S. W. 141; Crowell v. State (Tex. Cr.), 148 S. W. 570; Hamilton v. State (Tex. Cr.), 153 S. W. 331; McCue v. Com- monwealth, 103 Va. 870, 49 S. E. 623; State v. Sutfin, 22 W. Va. 771. A charge that contradictory testi- mony of witnesses "must" be con- sidered by the jury as affecting their credibility invades the province of the jury. State v. Rosa, 72 N. J. L. 462, 62 Atl. 695. The court may classify witnesses and instruct the jury as to the experience of the court as to a class of witnesses, but their credibil- ity must be left to the jury. State v. 33 INSTRUCTIONS RULES. 52 upon the credibility of such witnesses, as the accused himself," accomplices," children," detectives," experts,^" prostitutes," im- peached witnesses," and interested witnesses generally." The Tuttle, €1 Ohio St. 440, 66 N. E. S24, 93 Am. St. 689. "Stevens v. State, 138 Ala. 71, 35 So. 122; Erickson v. State, 14 Ariz. 253, 127 Pac. 754; Douglass v. State, 91 Ark. 492, 121 S. W. 923, 134 Am. St. 83; Carle v. People, 200 III. 494, 66 N. E. 32, 93 Am. St. 208; People V. McDonald, 159 N. Y. 309, 54 N. E. 46; People v. Biddison, 136 App. Div. 525, 121 N. Y. S. 129; Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655; State V. Cannon, 49 S. Car. 550, 27 S. E. 526; Tilrayer v. State, 58 Tex. Cr. 562, 126 S. W. 870, 137 Am. St. 982. Invasion in instruction that the jury in weighing the testimony of the accused must consider the fact that he is the accused and interested in the result. Pugh v. State, 4 Ala. App. 144, 58 So. 936. Invasion where the court instructs that, in weighing the testimony of the accused, the jury must consider his interest in the case ; but an instruction that they may do. so does not have this effect. Tuck- er v. State, 167 Ala. 1, 52 So. 464. In- vasion by instruction that the defend- ant has offered himself as a witness in his own behalf and that the jury are not permitted to disregard or re- ject his testimony simply on the ground that he is the accused and on trial on a criminal charge. People v. Winters, 125 Cal. 325, 57 Pac. 1067. "Tollifson V. People, 49 Colo. 219,. 112 Pac. 794; State v. Ryan, 24 Del. 223, 75 Atl. 869 ; People v. Schweitzer, 23 Mich. 301; Hamilton v. People, 29 Mich. 173; People v. Dumas, 161 Mich. 45, 125 N. W. 766. The prov- ince of the jury as to the credibility of witnesses is invaded by an instruc- tion that the jury must view the tes- timony of the wife of an accomplice with caution and give every considera- tion to the fact that she is the wife of an accomplice. Crittenden v. State, 134 Ala. 145, 32 So. 273. "People V. Lewis, 252 111. 281, 96 N. E. 1005. "People V. Dressen, 158 111. App. 139; State v. Kennett, 151 Mo. App. 637, 132 S. W. 286; State v. Kim- mell, 156 Mo. App. 461, 137 S. W. 329; State v. Emmons, 63 Ore. 535, 127 P?ic. 791. "White V. State, 133 Ala. 122, 32 So. 129; Parrish v. State, 139 Ala. 16, 36 So. 1012; People v. Wilkins, 158 Cal. 530, 111 Pac. -612; People v. Driggs, 14 Cal. App. 507, 112 Pac. 577 ; Shaffer v. United States, 24 App. D. C. 417; Rouse v. State, 135 Ga. 227, 69 S. E. 180; State v. Wilcox, 132 N. Car. 1122, 44 S. E. 625; Miller v. State (Okla. Cr.), 131 Pac. 717. "State V. Rankin, 150 Iowa 701, 130 N. W. 732. "Rambo v. State, 134 Ala. 71, 32 So. 650, 92 Am. St. 17; Lyles v. United States, 20 App. D. C. 559. But see Smith v. State, 142 Ind. 288, 41 N. E. 595. Invasion to instruct that the jury was bound to accept and act upon the testimony of an impeached witness, if corroborated. R^a v. State, 3 Okla. Cr. 269, 105 Pac. 381. Prov- ince of jury invaded by instruction that the jury if they were of the opin- ion that any witness had wilfully and corruptly testified to what was false were at liberty to reject all of his tes- timony that was not corroborated by other testimony as the jury have a right to believe any portion of the testimony whether corroborated or not. State v. Musgrave, 43 W. Va. 672, 28 S. E. 813, 39 L. R. A. 499, 64 Am. St. 922. "State V. Wisnewski, 13 N. Dak. 649, 102 N. W. 883 (witness entitled 53 PROVINCE OF COURT AND JURY. § 34 appearance and demeanor of the witness on the stand is for the jury to consider in giving weight to his testimony.^" § 34. Cautionary instructions. The court may in its discretion give cautionary instruc- tions,^^ and the giving of such instructions will not be ground for reversal unless the privilege has been grossly abused to the injury of a party.^^ In criminal cases the court may caution the jury against sym- pathy for accused or his relatives or against the influence of pub- lic prejudice against the crime or the one charged therewith. ^^ The court may instruct that the jury should base their verdict on the evidence and not be influenced by matters outside the case.^* Whenever necessary, the jury should be cautioned against convictions from prejudice or upon insufficient evidence,^^ but they should not be told that a failure to perform their duty, whereby a crime goes unpunished, can not be corrected by a new trial. ^° The court may tell the jury that questions of mercy are not for the jury, but for the executive in the exercise of the par- doning power.^^ to reward on conviction) ; State v. ness stand" although an invasion of Pomeroy, 30 Ore. 16, 46 Pac. 797 the province of the jury is not preju- (wife and daughter of accused) ; dicial for it merely tells the jury what Harrell v. State, Zl Tex. Cr. 612, 40 they would do without being told. S. W. 799. Province of jury invaded People v. Newcomer, 118 Cal. 263, 50 by charge that in estimating the value Pac. 405. of the testimony of a certain witness " Dinsmore v. State, 61 Nebr. 418, the jury should consider that he had 85 N. W. 445. a strong motive to testify in that he ^Rayburn v. State, 69 Ark. 177, 63 had civil suits pending against the de- S. W. 356. fendant in which he and the defend- ^ State v. Trapp, 56 Ore. 588, 109 ant would probably be witnesses. Peo- Pac. 1094, Ann. Cas. 1912 C, 357. pie v. Noblett, 96 App. Div. 293, 89 "^Foskey v. State, 119 Ga. 72, 45 S. N. Y. S. 181. E. 967; Wimberly v. State (Ga. App,), '"People v. Scanlon, 132 App. Div. 11 S. E. 879; State v. Tedder, 83 S. 528, 117 N. Y. S. 57; WilUams v. Car. 437, 65 S. E. 449. State (Tex. Cr.), 40 S. W. 801; '= Doyle v. State, 39 Fla. 155, 22 So. Penny v. State (Tex. Cr.), 42 S. W. 272, a Am. St. 159; Cook v. State, 297. An instruction that "you should 46 Fla. 20, 35 So. 665. carefully scrutinize all the testimony "^ State v. Crofford, 121 Iowa 395, in this case and in doing so consider 96 N. W. 889. all the circumstances under which "Dinsmore v. State, 61 Nebr. 418, each. witness has testified, his degree 85 N. W. 445. See also Avery v. of intelligence, his manner on the wit- State, 124 Ala. 20, 27 So. 505. CHAPTER III. SUBJECT-MATTER. Section 35. Pertinency of instructions to is- sues and evidence. 36. Recapitulation of testimony. Z7. Theories of case. 38. Theories of case in criminal pros- ecution. 39. Definition of terms. 40. Definition of terms in criminal cases. 41. Limitation of purpose of evidence. 42. Lower grade of offense. 43. Insanity of accused. 44. Reasonable doubt. 45. Good character of accused. 46. Circumstantial evidence. 47. Circumstantial evidence in crimi- nal cases. Section 48. Positive and negative testimony. 49. Presumptions from flight. 50. Confessions in criminal cases. 51. Presumptions of innocence. 52. Credibility of witnesses. 53. Credibility of witnesses in crimi- nal cases. 54. Failure of party to testify in his own behalf or call material wit- ness. 55. Failure of defendant in criminal case to testify. 56. Alibi in criminal cases. 57. Instruction to disregard testi- mony erroneously received. 58. Special verdicts. § 35. Pertinency of instructions to issues and evidence. It is the duty of the trial court to give requested instruc- tions which are warranted by the law and the evidence and are not covered by other instructions in the case ;^ but not so where the law, so far as applicable to the facts, is clearly stated in other instructions.^ It is the duty of a judge to instruct the jury upon every point ^ Marsh v. Cramer, 16 Colo. 331, 27 Pac. 169; Hill v. Ward, 7 111. 285; Conaway v. Shelton, 3 Ind. 334 ; Pitts- burg &c. R. Co. V. Cottman (Ind. App.), 101 N. E. 22; St. Louis &c. R. Co. v. Boyce, 5 Kans. App. 678, 48 Pac. 949; First National Bank v. Car- son, 30 Nebr. 104, 46 N. W. 276; Crosby v. Ritchey, 56 Nebr. 336, 76 N. W. 895; Kendrick v. Cisco, 81 Tenn. (13 Lea) 247; Vaughan v. Por- ter, 16 Vt. 266 ; Rowell v. Vershire, 62 Vt. 405, 19 Atl. 990, 8 L. R. A. 708. Under the Texas Code it is immaterial whether the instructions are embodied in a general charge or in one spe- cially presented to and adopted by him. Steiner v. Anderson (Tex. Civ. App.), 130 S. W. 261. It is error for the court to put before the jury any consideration, outside the evi- dence, that may influence them and lead to a verdict not otherwise pos- sible of attainment. Miller v. United States, Z7 App. D. C. 138. = Higgins V. Williams, 114 Cal. 176, 45 Pac. 1041, 34 L. R. A. 46. 54 55 SUBJECT-MATTER. § 36 pertinent to the issues and supported by the evidence,' though some of them have been omitted by counsel in the argument to the jui'y/ unless they are admitted or conceded, or are matters about which no question is made.° The rule is the same in crim- inal prosecutions." Furthermore, it is his duty accurately to state the law applicable to the case so that the jury may have clear and intelligent notions of what they are to decide,' and this duty is especially imperative where the evidence on material questions is sharply conflicting and the question of liability close.* A request that the court instruct as to whether the proper parties were joined in a suit is rightly refused, as this question is one for de- termination as a part of the procedure and not within the legiti- mate scope and purpose of instructions." Complaint of the re- fusal to instruct by one of the parties will not be heard where the court would have been justified on the evidence in directing a ver- dict for the other party. ^^ The court is not generally required to make any preliminary statement in charging the jury.^^ § 36. Recapitulation of testimony. It is the duty of the court to state the questions presented to the jury for their determination and the principles of law 'Douglass V. McAllister, 3 Mo. 161, 148 S. W. 862; State v. Cranch (U. S.) 298, 2 L. ed. 445; Manns, 48 W. Va. 480, 37 S. E. 613. Bell V. North, 4 Litt. (Ky.) 133; 'Owen v. Owen, 22 Iowa 270; Pennsylvania R. Co. v. 2ebe, 33 Pa. Blades v. Des Moines City R. Co., 318; Lynchburg Tel. Co. v. Booker, 146 Iowa 580, 123 N. W. 1057. 103 Va. 594, SO S. E. 148. ' People v. Gray, 251 111. 431, 96 N. * Bailey v. Poole, 35 N. Car. 404. E. 268; Chicago &c. R. Co. v. Garner, Not error to refuse to instruct on a 83 111. App. 118; People v. Johnson, matter of fact which has been made ISO 111. App. 424; Gorey v. Illinois plain by the evidence and as to which Cent. R. Co., 153 111. App. 17 ; Bar- no doubt can exist in the minds of tholoraew v. Illinois Val. R. Co., 154 the jury. Bell v. Chicago &c. R. Co., 111. App. 512; Witt v. Gallemore, 163 74 Iowa 343, 37 N. W. 768. 111. App. 649. " Edwards v. Schreiber, 168 Mo. " Worcester City Missionary Soc. v. App. 197, 153 S. W. 69. Memorial Church, 186 Mass. 531, 72 " Roberts v. United States, 126 Fed. N. E. 71- 897; Parker v. State, 136 Ind. 284,'3S "Fairfield v. Barrette, 73 Wis. 463, N. E. 1105; Heilman v. Common- 41 N. W. 624. wealth, 84 Ky. 457, 1 S. W. 731, 4 "Hamilton v. State (Tex. Civ. Am. St. 207; State V. Harris, 232 Mo. App.), 152 S. W. 1117. In a criminal 317, 134 S. W. 535; State v. Starr, 244 case the court may read the informa- 36 INSTRUCTIONS RULES. 56 applicable thereto, but the extent to which he shall recapitu- late the testimony in doing so is a matter entirely within his discretion." Thus where there is only one question of fact in a case and the question is clearly stated and given to the jury, it is unneces- sary, ordinarily, for the court to recapitulate the evidence and comment on corroborating circumstances, unless requested to do so." And where, as in North Carolina, it is made the duty of the judge "to state in a full and correct manner the evidence given in the case," he need state only so much as is necessary in order to aid the jury in reaching a conclusion upon the issues and it is therefore unnecessary for him to recapitulate the testi- mony a second time." If the judge recapitulates the evidence on one side he should, in fairness, recapitulate it on the other side.^^ It may not be demanded of the judge that he shall single out some particular portion of the evidence for special comment tion in the opening of the instruc- tions. People V. Maughs, 149 Cal. 253, 86 Pac. 187. "Murphy v. Connecticut Co., 84 Conn. 711, 81 Atl. 961; Virgie v. Stet- son, Ti Maine 452; Bauman v. Pere Marquette Boom Co., 66 Mich. 544, ZZ N. W. 538; Rollins v. Varney, 22 N. H. 99; Smith v. Gray, 19 App. Div. 262, 46 N. Y. S. 180. Undis- puted facts may not be submitted as issuable. Pullman Co. v. Custer (Tex. Civ. App.), 140 S. W. 847. The mere refusal to state certain facts to the jury, though undisputed, is not ground for reversal. Brickley v. Walker, 68 Wis. 563, 32 N. W. HZ. Unless there be some reason why the judge should remark particularly on the testimony of a witness, he may, with propriety, decline to comply with a request to do so. Findly v. Ray, 50 N. Car. 125. The court may properly mention the evidence bearing on a controversy, speaking of it correctly and in case of conflict, without suggesting the effect thereof. Holway v. Sanborn, 145 Wis. 151, 130 N. W. 95. Where the facts in a criminal case are not compli- cated, it may be a sufficient summing up of the case for the court merely to read the notes of the evidence and charge the law in general terms. State V. Beard, 124 N. Car. 811, 32 S. E. 804. It is sufficient for the court in its charge to give the jury a general re- view of the evidence which fairly and adequately presents the respective con- tentions of the state and of defend- ant with only enough reference to the items of evidence to assist the jury in recalling it as a substantial whole and to appreciate its bearing. Com- monwealth V. Kaiser, 184 Pa. 493, 39 Atl. 299. " Lauer v. Yetzer, 3 Pa. Super. St. 461. "Aston V. Craigmiles, 70 N. Car. 316. ^° Lamar v So. 279. King, 168 Ala. 285, IZ 57 SUBJECT-MATTER. § ;^y and remark/^ If there is no evidence upon a particular point it is unnecessary for the court to inform the jury of tliat fact/' § 37. Theories of case. A party to a cause of action is entitled to have his theory submitted to the jury, (1) where supported by the evidence and the pleadings, (2) and this makes it the duty of the court to submit all such issues, (3) both affirmative and negative. ( I ) Unless a party's theory is wholly lacking in support from the pleadings and the evidence, it must be pixsented to the jury.^'* Thus in an action to recover for services in erecting a barn, the defense being that the work was abandoned without just cause, an instruction telling the jury that the plaintiff is entitled to recover some amount affords ground for a reversal, for the court did not submit to the jury whether the work was abandoned without just cause.^' A party has a right not only to tender his own theory of the case, but also, without waiver of his own theoiy, to tender instructions to meet the theory of the opposite party.^" Where the testimony sustains the theory of both parties '"Dahill V. Booker, 140 Mass. 308, 23S; Winter v. Forrest, 145 Ky. 581, 5 N. E. 496, 54 Am. Rep. 465. . 140 S. W. 1005 ; Lion v. Baltimore " Central of Georgia R. Co. v. Bag- City Pass. R. Co., 90 Md. 266, 44 ley, 173 Ala. 611, 55 So. 894; South- Atl. 1045, 47 L. R. A. 127; Howard ern R. Co. v. Hobson (Ala. App.), County v. Pindell, 119 Md. 69, 85 58 So. 751; Neale v. McKinstry, 7 Atl. 1041 ; Cooper v. Mulder, 74 Mich. Mo. 128. 374, 41 N. W. 1084; Wendt v. Rich- " Birmingham R. &c. Co. v. Camp, mond, 164 Mich. 173, 129 N. W. 38; 161 Ala. 456, 49 So. 846; Lamar v. Robertson v. Burton, 88 Minn. 151, 92 King, 168 Ala. 285, 53 So. 279; Tog- N. W. 538; Thornton v. Mersereau, nazzini v. Freeman, 18 Cal. App 468, 168 Mo. App. 1, 151 S. W. 212; Col- 123 Pac. 540; Murphy v. Connecticut grove v. Pickett, 75 Nebr. 440, 106 Co., 84 Conn. 711, 81 Atl. 961; Sa- N. W. 453; Hauber v. Leibold, 76 vannah Flee. Co. v. Johnson (Ga. Nebr. 706, 107 N. W. 1042; St. Louis App.), 76 S. E. 1059; Jones v. Cald- &c. R. Co. v. Posten, 31 Okla. 821, well, 20 Idaho 5, 116 Pac. 110, Anh. 124 Pac. 2; Miller v. Lyons, 113 Va. Cas. 1912 D, 1046; Casey v. Grand 275, 74 S. E. 194; West v. Shaw, 61 Trunk Western R. Co., 165 111. App. Wash. 227, 112 Pac. 243; Jones v. 485; Ridinger v. Toledo &c. R. Co., Riverside Bridge Co., 70 W. Va. 374, 168 111. App. 284; Southern Indiana 73 S. E. 942. R. Co. V. Peyton, 157 Ind. 690, 61 N. " Robertson v. Burton, 88 Minn. E. 722; Baltimore &c. R. Co. v. Peck 151, 92 N. W. 538. (Ind.), 101 N. E. 674; Qement v. "Ziehme v. Metz, 157 111. App. 543. Drybread, 108 Iowa 701, 78 N. W. § 1"] INSTRUCTIONS RULES. 58 it is not enough to give the theory of one of the parties, both in the affirmative and the negative, but the court should also give the theory of the other party.^^ An instruction is not, how- ever, necessary where the issue is uncontroverted,^^ or has -been withdrawn.'* Nor does the trial court commit error in failing to preface its instructions by a statement of the issues formed by the pleadings where the issues are not complicated and the controversy is made clear to the jury.'* Neither may a party demand instructions on his theory of the case where his theory is contrary to the law applicable to the case.'^ Ordinarily, the theories of both parties may be covered in a single instruction.'" (2) The court should submit all the issues and not merely such as are supported by a preponderance of the evidence.'' This does not, however, require the submission of every dis- puted evidentiary fact, but only the essential facts warranting a recovery without omission of essential ultimate facts which would defeat such recovery or vice versa.'* A party has the right to have the whole case submitted either for a general verdict or for such special findings as will dispose of the issues.^' Thus where there are two theories as to a tortious death, each being supported by evidence, the court should clearly draw the attention of the ^ West V. McDonald (Ore.), 127 387, 128 S. W. 367; Parks v. Sullivan Pac. 784. (Tex. Civ. App.), 152 S. W. 704. The '^Fordyce v. Rapp, 131 Mo. 354, Zi court should charge on the issues in- S. W. 57; Missouri &c. R. Co. v. volved, though the case is submitted Box (Tex. Civ. App.), 93 S. W. 134. on special issues. Texas Baptist Univ. '^German Ins. Co. v. Chicago &c. v. Patton (Tex. Civ. App.), 145 S. W. R. Co., 128 Iowa 386, 104 N. W. 361 ; 1063. Where instructions covering Hansen v. St. Paul Gaslight Co., 88 the same point are requested by both Minn. 86, 92 N. W. 510. sides, if the court adopts those re- ^ Lambert v. LaConner Trading &c. quested by one side, the other should Co., Zl Wash. 113, 79 Pac. 608. be rejected. Melius v. Chicago &c. R. == Sturm V. Central Oil Co., 156 111. Co., 71 Wash. 64, 127 Pac. 575. App. 165. • "^Acme Harvesting Mach. Co. v. ^Toone v. O'Neill Const. Co. Gasperson, 168 Mo. App. 558, 153 S. (Utah), 121 Pac. 10. W. 1069; Putney v. Schmidt, 16 N. "Krieger v. Aurora &c. R. Co., 242 Mex. 400, 120 Pac. 720; Crisman v. 111. 544, 90 N. E. 266; Maxwell v. McMurray, 107 Tenn. 469, 64 S. W. Massachusetts Title Ins. Co., 206 711. Mass. 197, 92 N. E. 42; Volk v. '» Coolidge v. Ayers, 76 Vt. 405, 57 Beatty, 40 Pa. Super Ct. 628 ; Barnes Atl. 970.- V. Dallas Consol. St. R. Co., 103 Tex. eg SUBJECT-MATTER. ' § 38 jury to the law applicable to each theory.'" So where a plaintiff claims under two separate deeds of conveyance, it is error for the court to confine the jury, in their deliberations, to the claim aris- ing from only one of such deeds,^^ and where there are two dis- tinct defenses supported by the evidence, the court should fairly instruct as to both.^^ (3) In submitting the issues, both the affirmative and the negative must be presented.^^ Either party, where there is supporting evidence, is entitled to have his theory submitted in the instructions,^* and where a charge ignores the theory of the defendant, which is supported by evidence, there is reversible error.^° Thus where the court is asked to instruct that unless they find and believe from the evi- dence that the plaintiff complied with all the requirements upon his part under the contract offered in evidence, their finding should be for the defendant, there is no good reason for refusing it where the affirmative of the proposition was given in one of plaintiff's instructions.^® § 38. Theories of case in criminal prosecution. The rule requiring the court to instruct on all theories of the case having support in the evidence to any extent, has a like application in criminal prosecutions.*^ ™Cerrillos Coal R. Co. v. Deser- So. 370; Bell v. State, 2 Ala. App. ant, 9 N. Mex. 49, 49 Pac. 807. ISO, 56 So. 842; Agee v. Common- ''Sackett v. Stone, 115 Ga. 466, 41 wealth, 9 Ky. L. 272, 5 S. W. 47; Gor- S. E. 564. don v. Commonwealth, 136 Ky. 508, '"Crow V. Burgin (Miss.), 38 So. 124 S. W. 806; Tucker v. Common- 625. wealth, 145 Ky. 84, 140 S. W. 73; ^Buckley v. Silverberg, 113 Cal. People v. Cummins, 47 Mich. 334, 11 673, 45 Pac. 804; Miller v. Miller, 97 N. W. 184; People v. Parsons, 105 Mich. 151, 56 N. W. 348; Womach v. Mich. 177, 63 N. W. 69; State v. Mc- St. Joseph, 168 Mo. 236, 67 S. W. 588; Broom, 238 Mo. 495, 141 S. W. 1120. Missouri &c. R. Co. v. Renfro (Tex. 37 L. R. A. (N. S.) 861, Ann. Cas. Civ. App.), 83 S. W. 21. 1913 A, 535; Territory v. Baca, 11 N. "Buckley v. Silverberg, 113 Cal. Mex. 559, 71 Pac. 460; State v. 673, 45 Pac. 804. Grainger, 157 N. Car. 628, 73 S. E. ='Wildey V. Crane, 69 Mich. 17, 36 149; State v. Tough, 12 N. Dak. 425, N- W. 734. 96 N. W. 1025; Reed v. State, 3 Okla. "■Bruce v. Wolfe, 102 Mo. App. 384, Cr. 16, 103 Pac. 1070, 24 L. R. A. (N. 76 S. W. 723. S.) 268; Ford v. State, 101 Tenn. "Sanford v. State, 143 Ala. 78, 39 454, 47 S. W. 703; Cooper v. State, §39 INSTRUCTIONS RULES. 60 The instruction should be given though the evidence in sup- port of the theory is shght,^* and is adduced by the party opposed to the one asking it/^ The court may instruct upon all theories of the defense though they may necessarily conflict.*" In all cases, however, requested instructions must be correct expositions of the law applicable to the theory advanced.*^ § 39. Definition of terms. Where technical terms, or terms which have acquired a pe- culiar significance in the law, are employed in instructions, the court should point out their meaning to the jury, unless the meaning is already clear.*^ Where words and expressions are used in a legal or technical sense differing from the common acceptation of the term, an in- struction defining their meaning is proper and in some cases es- 123 Tenn. 37, 138 S. W. 826; Reed v. State, 9 Tex. App. 317; Berry v. State, 58 Tex. Cr. 291, 125 S. W. 580; Moore v. State, 59 Tex. Cr. 361, 128 S. W. 1115. The defendant is en- titled to an instruction that unless certain facts are shown he should be acquitted where on the converse of this the state asks for his conviction. State V. Rutherford, 152 Mo. 124, 53 S. W. 417, 75 Am. St. 441. The de- fendant has a right to a clear in- struction applicable to his testimony, based on the hypothesis that it is true, when such testimony affects a material issue in the case. Payton v. State, 4 Okla. Cr. 316, 111 Pac. 666. Where the accused in his statement presents a theory which, if true, en- titles him to either an acquittal or conviction of a lower offense than the one charged, it is error to refuse a written request applicable to such theory. Dozier v. State, 12 Ga. App. 722, 78 S. E. 203. Where there is evidence in support of two opposing theories as to the cause and motives of an alleged defense and a court charges as to the theory of the state, it is error to refuse an instruction covering the theory of the accused. Jackson v. Commonwealth, 96 Va. 107, 30 S. E. 452. ^ Ladwig v. State, 40 Tex. Cr. 585, 51 S. W. 390; State v. Manns, 48 W. Va. 480, 37 S. E. 613. ""Stapleton v. State, 56 Tex. Cr. 422, 120 S. W. 866. *■ Carver v. State, 36 Tex. Cr. 552, 38 S. W. 183. "State V. Smith, 43 Ore. 109, 71 Pac. 493. "Denver &c. R. Co. v. Norgate, 141 Fed. 247, 6 L. R. A. (N. S.) 981; Thomas v. Presbrey, 5 App. D. C. 217; Holmes v. Clisby, 121 Ga. 241, 48 S. E. 934, 104 Am. St. 103; Mo- mence Stone Co. v. Turrell, 205 111. 515, 68 N. E. 1078; Overhouser v. American Cereal Co., 128 Iowa 580, 105 N. W. 113, 25 L. R. A. (N. S.) 20; McArthur v. Dayton, 19 Ky. L. 882, 42 S. W. 343 ; Bowles Live Stock Commission Co. v. Hunter, 91 Mo. App. 333 ; Yerkes v. Northern Pac. R. Co., 112 Wis. 184, 88 N. W. 33, 88 Am. St. 961. 6i SUBJECT-MATTER. §39 sential," for it is not to be expected that the untrained minds of jurors will grasp the meaning of legal terms without explana- tion.** Thus an instruction that the plaintiff is required to estab- lish "all the material allegations of his petition" is open to objec- tion as leaving the jury to decide for themselves what is meant by materiality.*^ So in an action against a city for damage to lots in consequence of a faulty sewer, it is error to submit to the jury the question of plaintiff's ownership of the land without showing what constitutes ownership or title.*" The court should give an instruction defining negligence and ordinary care as those terms are used in the charge.*' The terms "independent con- tractor,"*^ and "exemplary damages" should be defined.*" But where ordinary words and terms are used in the sense in which they are commonly understood, it is unnecessary to define or ex- plain them.^° The courts have placed in this category such words and expressions as "diligent inquiry,"°^ "direct and proximate" *'Overhouser v. American Cereal Co., 128 Iowa 580, lOS N. W. 113, 25 L. R. A. (N. S.) 20; Roberts v. Pied- mont, 166 Mo. App. 1, 148 S. W. 119 ("great degree of care" should be defined). "Prompt and proper treat- ment" by physician should be defined. Dunnagan v. Briggs, 170 Mo. App. 691, 154 S. W. 428. A requested charge explanatory of charges given at the request of the other party should not be refused. Sloss-Shef- field St. &c. Co. V. Milbra, 173 Ala. 658, 55 So. 890. " Holmes v. Clisby, 121 Ga. 241, 48 S. E. 934, 104 Am. St. 103. *= Williams V. Iowa Cent. R. Co., 121 Iowa 270, 96 N. W. 774. "McArthur v. Dayton, 19 Ky. L. 882, 42 S. W. 343. "Chesapeake &c. R. Co. v. War- nock, 150 Ky. 74, 150 S. W. 29; South Covington &c. R. Co. v. Nelson, 28 Ky. L. 287, 89 S. W. 200; Raybourn V. Phillips, 160 Mo. App. 534, 140 S. W. 911; Cleburne Elec. &c. Co. v. McCoy (Tex. Civ. App.), 149 S. W. 534. But see Western Union Tel. Co. v. Brasher, .136 Ky. 485, 124 S. W. 788. "Overhouser v. American Cereal Co., 128 Iowa 580, 105 N. W. 113, 25 L. R. A. (N. S.) 20. *'Hink V. Sherman, 164 Mich. 352, 129 N. W. 732. But see St. Louis &c. R. Co. V. Moore, 101 Miss. 768, 58 So. 471; Distler v. Missouri Pac. R. Co., 163 Mo. App. 674, 147 S. W. 518. °° Jackson v. Georgia R. &c. Co., 7 Ga. App. 644, 67 S. E. 898; Cottrill v. Krum, 100 Mo. 397, 13 S. W. 753, 18 Am. St. 549; Clonts v. Laclede Gaslight Co., 160 Mo. App. 456, 140 S. W. 970 ; Johnson v. W. H. Goolsby Lumber Co. (Tex. Civ. App.), 121 S. W. 883. "' Cottrill V. Krum, 100 Mo. 397, 13 S. W. 753, 18 Am. St. 549. § 40 INSTRUCTIONS RULES. 62 result/^ "proximate cause,'"^^ "preponderance of evidence,"" "common laborer,"^'' "agency."'"' It has been held unnecessary to explain what is meant by "adverse" possession of realty, as the viTord in itself imports a "hostile and distinct" possession." Fur- ther, in an action for an illegal arrest and imprisonment, an in- struction telling the jury that if they believed the defendant "unlawfully and oppressively arrested the plaintiff in the night time and confined him in the city jail," then they should find for the plaintiff, was held not objectionable where other instructions informed the jury when an arrest without warrant might be made and pointed out what was meant by an oppressive arrest. °* § 40. Definition of terms in criminal cases. The rule as to the definition of terms in instructions is the same in criminal prosecutions as in civil cases. The court in the trial of a criminal case is required to define technical words and expressions, but not words and expressions which are of ordinary understanding and self-explanatory.^^ Among other things it has been held the duty of the court to define such terms as "corpus delicti,""" "wilful,""^ "successfully impeached,""^ "implied malice,"''^ "wilfully" and "deliberately,"" "Rand V. Butte Elec. R. Co., 40 ■* Roberts v. State, 114 Ga. 450, 40 Mont. 398, 107 Pac. 87. S. E. 297; State v. McKinnon (Iowa), '' Louisville v. Arrowsmith, 145 Ky. 138 N. W. 523 ; State v. McGuire, 193 498, 140 S. W. 1022. Mo. 215, 91 S. W. 939; State v. "Franklin v. Visalia Elec. R. Co. Clark, 134 N. Car. 698, 47 S. E. 36. (Cal. App.), 131 Pac. 776; Wilming- The practice of the court of reading ton City R. Co. v. Truman, 7 Penn. to the jury in its charge definitions (Del.) 197, 72 Atl. 983; Chicago City of a word given in dictionaries is not R. Co. V. Kastrzewa, 141 111. App. 10 ; to be commended. State v. Rivers, 84 Rand v. Butte Elec. R. Co., 40 Mont. Vt. 154, 78 Atl. 786. 398, 107 Pac. 87. " People v. Frey, 165 Cal. 140, 131 ""Boettger v. Scherpe &c. Architec- Pac. 127. tural Iron. Co., 136 Mo. 531, 38 S. W. ""Windon v. State, 56 Tex. Cr. 198, 298. 119 S. W. 309. "* Western Union Tel. Co. v. Ford, '"'People v. Blevins, 251 111. 381, 96 10 Ga., App. 606, 74 S. E. 70. N. E. 214, Ann. Cas. 1912 C, 451. " Miller V. Beck, 68 Mich. Id, 35 N. "^ Connell v. State, 46 Tex. Cr. 259, W. 899. 81 S. W. 746. °' White V. Madison, 16 Okla. 212, 83 "^ Holt v. State, 48 Tex. Cr. 559, 89 Pac. 798. S. W. 838. 63 SUBJECT-MATTER. §41 "provoking a difficulty,"*" and "heat of passion.""* It has been held unnecessary to define "preponderance of the evidence,"" "corroborate,""* "improper conduct,"*" "anger,"'" "prostitu- tion,"'^ "credibility,"" "lucid interval,"'* "felonious,"'* and "self-defense."'° The court may describe the offense in the lan- guage of the statute,'* though a charge will ordinarily suffice which gives the substance of the statute." It is the duty of the court, in plain and concise language, to define the offense accu- rately and tell the jury the essential facts necessary to a convic- tion, rather than to refer them to the indictment to determine what they must find in order to convict.'* §41. Limitation of purpose of evidence. Where evidence is admitted for a particular, limited pur- pose, the court should instruct that the evidence is to be con- sidered for such purpose only and its scope and effect should be explained to the jury." Where, for example, the sole purpose of the evidence is to dis- credit the testimony of a witness, the court should instruct that '=Vann v. State, 4S Tex. Cr. 434, '= State v. Bailey, 190 Mo. 257, 88 n S. W. 813, 108 Am. St. 961. S. W. 733. "■ State V. Skaggs, 159 Mo. 581, 60 ™ People v. Fortch, 13 Cal. App. S. W. 1048. 770, 110 Pac. 823; Alt v. State, 88 " State V. Felkir, 27 Mont. 451, 71 Nebr. 259, 129 N. W. 432, 35 L. R. A. Pac. 668. (N. S.) 1212. Instruction should fol- "* Still V. State (Tex. Cr.), 50 S. W. low the language of the statute and 355. state that accessories are those who *"" State V. Barrington, 198 Mo. 23, "advise and encourage" instead of 95 S. W. 235. "advise or encourage" the commis- " Robinson v. State (Tex. Cr.), 63 sion of crime. State v. Geddes, 22 S. W. 869. Mont. 68, 55 Pac. 919. "Tores v. State (Tex. Cr.), 63 S. "State v. Ireland, 72 Kans. 265, 83 W. 880. Pac. 1036; State v. Miller, 93 Mo. 263, "Barber v. State, 64 Tex. Cr. 96, 6 S. W. 57; Adkins v. State, 41 Tex. 142 S. W. 577. Cr. 577, 56 S. W. 63. " Montgomery V. State (Tex. Cr.), ™ Christie v. People, 206 111. iZI, 151 S. W. 813. 69 N. E. ii ; State v. Brown, 104 Mo. "State V. Penney, 113 Iowa 691, 84 365, 16 S. W. 406; State v. Scott, N. W. 509; Metcalfe v. Common- 109 Mo. 226, 19 S. W. 89; Territory wealth, 27 Ky. L. 704, 86 S. W. 534; v. Baca, 11 N. Mex. 559, 71 Pac. 460. State v. Brown, 104 Mo. 365, 16 S. '"Birmingham Trust &c. Co. v. W. 406; State v. Rowland, 174 Mo. Currey (Ala.), 57 So. 962; Barlow 373, 74 S. W. 622. Bros. Co. v. Parsons, Ti Conn. 696, § 41 INSTRUCTIONS RULES. 64 such evidence is to be considered for that purpose and no other.*" And where a statute makes a tax deed prima facie evidence of the regularity of the proceedings from the time the property was appraised by the assessor to the date of the deed, the presumption in favor of the instrument may be overcome by competent evi- dence and the court should therefore point out to the jury the purpose for which the deed is introduced in evidence and the ef- fect of its introduction." So in an action against a city for per- sonal injuries sustained by reason of a defective highway, evi- dence that a party of men and women had been drinkiiig and were on their way to a road-house, "where they expected to get more liquor and have a high time," is competent for the purpose of showing a want of due care on their part, but the purpose and effect of the introduction of such testimony should be limited, under proper instructions from the court, to the question of due care.'^ So also, in an action to recover for an alleged nuisance, where evidence otherwise inadmissible is admitted with the view of showing the unhealthy condition of certain premises, it is proper practice to inform the jury that the testimony is to be considered by them for this purpose alone.*' The court should instruct that a deposition may not be considered against a party not notified that it was to be taken.** Where the court has stated 49 Atl. 205; Chicago City R. Co. v. ™ Barlow Bros. Co. v. Parsons, 73 Schuler, 111 III. App. 470; Lowe v. Conn. 696, 49 Atl. 205; Georgetown Alton Baking Co., 158 111. App. 458; Water &c. Co. v. Neale, 137 Ky. 197, Pittsburgh &c. St. R. Co. v. Parish, 125 S. W. 293; Watson v. Kentucky 28 Ind. App. 189, 62 N. E. 514; &c. R. Co., 137 Ky. 619, 126 S. W. 146 ; Kircher v. Larchwood, 120 Iowa 578, Buckry-EUis v. Missouri Pac. R. Co., 95 N. W. 184; Miller v. Miller, 154 158 Mo. App. 499, 138 S. W. 912; Iowa 344, 134 N. W. 1058 ; Louisville Connecticut River Power Co* v. Dick- Gas Co. V. Kentucky Heating Co., 142 inson, 75 N. H. 353, 74 Atl. 585, 27 Ky. 253, 134 S. W. 205, Ann. Cas. L. R. A. (N. S.) 966. 1912 D, 319; South Covington &c. St. «' Ropes v. Minshew, 51 Fla. 299, 41 R. Co. V. Finan, 153 Ky. 340, 155 S. So. 538. W. 742; Dalton v. Dregge, 99 Mich. '^Guertin v. Hudson, 71 N. H. 505, 250, 58 N. W. 57; McMorrow v. S3 Atl. 736. Dowell, 116 Mo. App. 289, 90 S. W. ^ Cohen v. Bellenot (Va.), 32 S. 728; Cleland v. Anderson, 66 Nebr. E. 455. 252, 92 N. W. 306, 96 N. W. 212, 98 "* MiUspaugh v. Missouri Pac. R. N. W. 1075, 5 L. R. A. (N. S.) 136; Co., 138 Mo. App. 31, 119 S. W. 993. Cohen v Bellenot (Va.), 32 S. E. 455. 65 SUBJECT-MATTER. g 42 the issues made by the pleadings he should go further and tell the jury that the pleadings are not evidence and what is stated in them is not to be considered as such.*'^ The rule is the same as to the indictment in a criminal case. The indictment is a mere .- formal charge and not any evidence of guilt, but the failure to charge to this effect is not ordinarily reversible error.*" The court may properly charge as to the legal effect of uncontra- dicted evidence or admitted facts." It may be observed that the rule authorizing limitation of testimony is usually confined to cases where the admitted testimony may be used for an illegiti- mate purpose.*' § 42. Lower grade of offense. An instruction on the question of a lower grade of offense than that charged in the indictment but necessarily included therein is proper where the evidence justifies the giving of such an instruction.' ' But such instruction should not be " given where the accused is guilty of the greater offense or not guilty at all.°» Accordingly where the offense charged consists of several de- grees the court should instruct on the law of an attempt to com- mit the crime charged where there is evidence on that issue.'^ A •charge to acquit if the jury have a reasonable doubt of the guilt of the accused applies to all degrees of murder and the court need not charge specifically as to a reasonable doubt between the de- grees.'^ == Western &c. R. Co. v. Meigs, 74 109 Iowa 72, 80 N. W. 214; State v. 'Ga. 857. Musick, 101 Mo. 260, 14 S. W. 212, *= State V. Baker, 136 Mo. 74, 27 S. 20 Am. St. 60S; State v. McThail, 39 W. 810; State v. Darragh, 152 Mo. Wash. 199, 81 Pac. 683. >.S22, 54 S. W. 226; State v. Hollings- '"State v. Dean, 148 Iowa 566, 126 -worth, 156 Mo. 178, 56 S. W. 1087, N. W. 692; State v. Nelson, 91 Minn. 79 Am. St. 515. 143, 97 N. W. 652; State v. Sanders, " Whelan v. Union Pac. R. Co., 91 14 N. Dak. 203, 103 N. W. 419. Nebr. 238, 136 N. W. 20. ■" State v. Franklin, 69 Kans. 798, ''Texarkana Gas &c. Co. v. La- 77 Pac. 588. nier (Tex. Civ. App.), 126 S. W. 67. "Little v. State, 39 Tex. Cr. 654, 47 "Stokes V. Territory, 14 Ariz. 242, S. W. 984; McKinney v. State (Tex. 127 Pac. 742; Pickett v. State, 91 Ark. Cr.), 55 S. W. 175. .570, 121 S. W. 732 ; State v. Desmond, 5 — Branson's Inst. '43 INSTRUCTIONS RULES 66 § 43. Insanity of accused. The question of the insanity of the accused at the time of the commission of the crime should be submitted where there is testimony tending to show that the accused was mentally incapable of committing the crime, although such testimony is slight as compared with the testimony to the contrary.^ ^ The court should not disparage the defense."* A proper statement of the law on insanity has been held con- tained in an instruction which advised the jury that insanity means such a perverted and deranged condition of the men- tal and moral faculties as renders a person incapable of dis- tinguishing between right and wrong, or not conscious, at the time, of the nature of the act he is committing, or where conscious of it and able to distinguish between right and wrong, and knowing that the act is wrong, yet his will — by which is meant the governing power of his mind — has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control."^ The burden of proof of the defense of insanity rests on the accused,'" °' Patterson v. State, 124 Ga. 408, punishment seems hopeless. State v. 52 S. E. 534; State v. Newman, 57 Crowe, 39 Mont. 174, 102 Pac. 579. Kans. 70S, 47 Pac. 881. No necessity == Butler v. State, 102 Wis. 364, 78 for instruction on emotional insanity N. W. 590; Lowe v. State, 118 Wis. where the evidence does not raise 641, 96 N. W. 417. An instruction on that issue. Hurst v. State, 40 Tex. Cr. the test of accountability was not er- 378, 46 S. W. 635. roneous which informed the jury that "There was no prejudicial error in if at the time of committing the the instruction in a prosecution for crime the defendant had a sufficient assault with a deadly weapon that the degree of reason to discern between defense of insanity should be received moral good and evil, then he was re- with caution and applied with equal sponsible for his acts, but that if he force where the defense was that the was unable to distinguish between defendant was unconscious of his act. right and wrong he should be ac- People V. Nihill, 144 Cal. 200, 11 quitted. Bothwell v. State, 71 Nebr. Pac. 916. Instruction disparages de- 747, 99 N. W. 669. f ense of insanity which says that the ^ Matheson v. United States, 227 U. defense is one which may be, and S. 540, 33 Sup. Ct. 355, 57 L. ed. 631; sometimes is, resorted to in cases People v. Wells, 145 Cal. 138, 78 Pac where the proof of the act is so 470; State v. Shufif, 9 Idaho 115, 72 complete that any other means of Pac. 664; Snider v. State, 56 Nebr. avoiding conviction and escaping 309, 76 N. W. 574. 67 SUBJECT-MATTER. 44 and the fact must be proved to the reasonable satisfaction of the jury." Where defendant has been adjudged insane by a court, there is a presumption of the continuance of the condition and the court should charge that the burden is on the state to show that the insane condition has terminated and that accused was sane at the time the crime was committed.'* § 44. Reasonable doubt. The defendant in a criminal case is entitled to an instruc- tion that the jury must acquit unless they are convinced of his guilt beyond a reasonable doubt. This doubt must spring from the whole case and arise from the evidence or the want of evidence or from a conflict in the evidence.""* It must be a substantial or fair doubt and not one based in whim, caprice, or imagination.'^ "Minder v. State, 113 Ga. 772, Z9 S. E. 284; State v. Duestrow, 137 Mo. 44, 38 S. W. SS4, 59 Am. St. 489. An instruction on insanity was proper which told the jury that every man is presumed to be sane till the con- trary is proved and where mental im- becility is interposed as a defense the defendant must prove it to their rea- sonable satisfaction and that it must be proved that at the time of com- mitting the act the defendant labored under such mental defects as not to know the nature of the act he was doing, or if he did know it that he did not know that he was doing wrong. State v. Palmer, 161 Mo. 152, 61 S. W. 651. ''Morse v. State (Tex. Cr.), 152 S. W. 927. "Willis V. State, 134 Ala. 429, 55 So. 226; Parker v. State, 5 Ala. App. 64, 59 So. 518; Bruce v. State, 71 Ark. 475, 75 S. W. 1080; Benton v. State, 9 Ga. App. 291, 71 S. E. 8; Isom v. Commonwealth, 25 Ky. L. 1805, 66 S. W. 184; People v. Gund, 163 Mich. 504, 128 N. W. 742; Ferguson v. State, 52 Nebr. 432, 72 N. W. 590, 66 Am. St. 512; Perrin v. State, 45 Tex. Cr. 560, 78 S. W. 930. ^Anthony v. State, 6 Idaho 383, 55 Pac. 884; People v. Swartz, 118 Mich. 292, 76 N. W. 491; State v. Temple, 194 Mo. 237, 92 S. W. 869; State v. Maupin, 196 Mo. 164, 93 S. W. 379; State V. Glover, 91 S. Car. 562, 75 S. E. 218; State v. Neel, 23 Utah 541, 65 Pac. 494; Emery v. State, 101 Wis. 627, 78 N. W. 145. Proper to charge: "It is not a mere doubt that authorizes an acquittal. The doubt which authorizes an acquittal must be a reasonable doubt." Lodge v. State, 122 Ala. 107, 26 So. 200. A charge on reasonable doubt not objectionable which states that "the doubt must be supported by reason and not by mere conjecture and idle supposition, irre- spective of evidence.'' People v. Ross, 115 Cal. 233, 46 Pac. 1059. An in- struction held not erroneous which said that "a reasonable doubt is not a mere whim, but is such a doubt as reasonable men may entertain after a careful and honest review and con- sideration of the evidence in the case. It is a doubt founded in reason and §44 INSTRUCTIONS RULES. 68 The reasonable doubt intended by the rule to justify acquittal must grow out of the whole case," and may arise from the lack of evidence as well as from the evidence introduced,^ but not from the argument of counsel.* It is not essential that the doubt should be one for which a reason can be given by the jurors.^ It ought, however, to be such a doubt as a man of reasonable intel- ligence could give some good reason for entertaining if he were called on to do so.® It is not required that the state should prove guilt to a mathematical certainty/ or "a moral certainty,"^ or by coming from reason or a doubt com- ing from reason and which survives reason.'' People v. Barker, 153 N. Y. Ill, 47 N. E. 31. Proper to in- struct that "beyond a reasonable doubt" does not mean beyond a mere doubt or possibility of innocence; that if guilt be established by evidence be- yond any doubt founded in reason and common sense as applied thereto a conviction should follow though the jury may believe there is doubt on the question not arising, however, to the certainty of a reasonable doubt or though they yet believed in the pos- sibility of innocence. Emery v. State, 101 Wis. 627, 78 N. W. 145. "Tribble v. State, 145 Ala. 23, 40 So. 938; Henry v. People, 198 III. 162, 65 N. E. 120; People v. Gray, 251 111. 431, 96 N. E. 268; Berry v. Common- wealth, 149 Ky. 398, 149 S. W. 824; State V. Garth, 164 Mo. 553, 65 S. W. 275. Error to refuse a charge to acquit if the jury upon considering all the testimony have a reasonable doubt about the guilt of the defend- ant arising out of any part of the evidence. Walker v. State^ 117 Ala. 42, 23 So. 149. Proper to refuse to charge that the jury were to consider all the evidence in the light of their experience as fair-minded men and on such fair and reasonable considera- tion to doubt the guilt of the defend- ant meant to acquit him. Thayer v. State, 138 Ala. 39, 35 So. 406. ' People V. Bartnett, 15 Gal. App. 89, 113 Pac. 879; Howell v. State, 98 Miss. 439, S3 So. 954; State v. Blue, 136 Mo. 41, Z7 S. W. 796. 'Walker v. State, 139 Ala. 56, 35 So. 1011; People v. Ammerman, 118 Gal. 23, 50 Pac. 15. "Roberts v. State, 122 Ala. 47, 25 So. 238; Smith v. State, 142 Ala. 14, 39 So. 329; Darden v. State, 72 Ark. 315, 84 S. W. 507; State v. Gohen, 108 Iowa 208, 78 N. W. 857, 75 Am. St. 213; Klyce v. State, 78 Miss. 450, 28 So. 827; Blue v. State, 86 Nebr. 189, 125 N. W. 136, 28 L. R. A. (N. S.) 367. "People V. Lagroppo, 90 App. Div. 219, 86 N. Y. S. 116. A "reasonable doubt" is one for which a reason can be given ; a substantial doubt based on the evidence, or want of evidence in the case, and not a bare possibility of defendant's innocence; such a doubt as would cause a reasonably prudent man to pause before acting in the highest affairs of life. State v. Raice, 24 S. Dak. Ill, 123 N. W. 708. ' Hicks V. State, 123 Ala. 15, 26 So. 337; Davis v. State, 114 Ga. 104, 39 S. E. 906. 'Talbert v. State, 121 Ala. ZZ, 25 So. 690. 69 SUBJECT-MATTER. § 45 evidence equivalent to "absolute and positive proof,"" or that produces an "undoubting" and satisfactory conviction of guilt. ^° So, an instruction that the commission of the offense must be shown to the satisfaction of the jury has been held erroneous as requiring too high a degree of proof." An instruction on rea- sonable doubt substantially in the language of the statute is ordi- narily sufificient,^^ for the term, in many jurisdictions, is regarded as self-explanatory." It is essential in all cases to acquittal on the ground of reasonable doubt that the doubt should be enter- tained by all the jurors.^* Reasonable doubt will acquit where it relates to the presence of the accused at the time and place where the crime is charged to have been committed.^^ The instruction should be requested where it is not already incorporated in the general charge of the court." One distinct enunciation of the principle is sufficient and it is unnecessary to repeat it in other instructions.^' § 45. Good character of accused. The previous good character of the accused, in a criminal prosecution, when made an issue by the evidence, is a fact "People V. Benham, 160 N. Y. 402, "Littleton v. State, 128 Ala. 31, 29 55 N. E. 11. So. 390, 86 Am. St. 71 ; Davis v. "State V. Paxton, 126 Mo. 500, 29 State, 131 Ala. 10, 31 So. 569; Yeats S. W. 705. V. State, 142 Ala. 58, 38 So. 760; "^ McCormack v. State, 133 Ala. 202, Whatley v. State, 144 Ala. 68, 39 So. 32 So. 268; Thayer v. State, 138 Ala. 1014, 3 L. R. A. (N. S.) 412; Outlet 39, 35 So. 406; Best V. State, 155 Ind. v. State, 147 Ala. 39, 41 So. 460; 46, 57 N. E. 534. Cook v. State, 46 Fla. 20, 35 So. 665 ; "Reeves v. Territory, 2 Okla. Cr. Rains v. State, 137 Ind. 83, 36 N. E. 351, 101 Pac. 1039. It has been held 532; Hodge v. Territory, 12 Okla. 108, correct to charge that a reasonable 69 Pac. 1077; State v. Gushing, 17 doubt is a strong doubt based on the Wash. 544, SO Pac. 512. testimony. State v. Summer, 55 S. "State v. Hassan, 149 Iowa 518, Car. 32, 32 S. E. 771, 74 Am. St. 128 N. W. 960; State v. Adair, 160 707. Mo. 391, 61 S. W. 187. "Buchanan v. State, 11 Ga. App. "Knight v. State, 60 Fla. 19, 53 So. 756, 76, S. E. 73; State v. Wilcox, 132 541. N. Car. 1120, 44 S. E. 625; State v. "Davis v. State, 46 Fla. 137, 35 So. Aughtry, 49 S. Car. 285, 26 S. E. 76; Watts v. State, 9 Ga. App. 500,' 619; Holmes v. State (Tex. Cr,), 150 71 S. E. 766. S. W. 926; State v. Costa, 78 Vt. 198, 62 Atl. 38. '45 INSTRUCTIONS RULES. 70 which he is entitled to have submitted for the consideration of the jury without any disparagement by the court." It is very generally held, however, that the good character of the defendant is not of itself a sufficient fact from which a rea- sonable doubt of guilt may arise; reasonable doubt of guilt must arise fpom all the evidence.^" It is not error to fail to call atten- tion to defendant's reputation for truth and veracity where his reputation in this respect has not been attacked and evidence in- troduced by him on this point, if objected to, might have been rejected.^" " Nelms V. State, 123 Ga. 575, 51 S. E. 588; Brundage v. State, 7 Ga. App. 726, 67 S. E. 1051; Powers v. State, 74 Miss, m, 21 So. 657; State v. Martin, 230 Mo. 680, 132 S. W. 595; Latimer v. State, 55 Nebr. 609, 76 N. W. 207, 70 Am. St. 403. Proof of good character may be considered in a doubtful case and may raise a doubt based on the improbability of guilt of one of generally good char- acter. State V. McGuire, 84 Conn. 470, 80 Atl. 761, 38 L. R. A. (N. S.) 1045. "Rowe V. United States, 97 Fed. 779, 38 C. C. A. 496; Cobb v. State, 115 Ala. 18, 22 So. 506; Car wile v. State, 148 Ala. 576, 39 So. 220; Olds V. State, 44 Fla. 452, 33 So. 296, 103 Am. St. 171; Spalding v. People, 172 111. 40, 49 N. E. 993; Hammond v. State, 74 Miss. 214, 21 So. 149; State v. Gushing, 17 Wash. 544, 50 Pac. 512. See also People V. Jackson, 182 N. Y. 66, 74 N. E. 565, 70 L. R. A. 787. But see State V. Brown, 39 Utah 140, 115 Pac. 994, Ann. Cas. 1913 E, 1. An instruc- tion was erroneous which told the jury that the office of evidence re- specting good reputation was not to raise a doubt of guilt but to aid in solving it. Schutz v. State, 125 Wis. 452, 104 N. W. 90. .Evidence of the good character of the defendant may be considered in connection with other evidence to create a reasonable doubt of his guilt and a charge that it can be considered only when the other evi- dence raises such a doubt is erro- neous. Edgington v. United States, 164 U. S. 361, 17 Sup. Ct. 72, 41 L. ed. 467. An instruction that evidence of good character must be considered and if in the judgment of the jury it does raise a doubt against positive evi- dence, the jury have a right to enter- tain such doubt and the defendant must have the benefit of it has been held to correctly state the rule in re- gard to such evidence. People v. Hughson, 154 N. Y. 153, 47 N. E. 1092. "^ People V. Smith, 122 Mich. 284, 71 SUBJECT-MATTER. §47 § 46. Circumstantial evidence. Where reliance is placed upon circumstantial evidence in support of a cause of action, the jury should be instructed to take this evidence into consideration in determining the issue. Instructions should cover the entire case and embrace all the testimony, whether direct or circumstantial,^^ and where a liti- gant relies on circumstantial evidence, in whole or in large part, he has the right to have the jury instructed that they may con- sider it." Where, however, some circumstantial evidence is in- troduced, but the case is not based thereon, there is no error in refusing to give an instruction respecting it.^^ § 47. Circumstantial evidence in criminal cases. Circumstantial evidence is legal and competent in criminal cases f* but the instruction on this character of evidence need not be given where the evidence of guilt is direct and posi- 81 N. W. 107. In a prosecution for murder it was proper to refuse an in- struction that if the jury believed the character of the defendant for peace and quietude good they should con- sider it in favor of his innocence even though they believed his character for veracity bad. Terry v. State, 120 Ala. 286, 25 So. 176. '"United States Exp. Co. v. Jenkins, 64 Wis. S42, 25 N. W. 549. " State V. Hammond, 6 Gill & J. (Md.) 157; Culbertson v. Hill, 87 Mo. 553; Jones v. Hess (Tex. Civ. App.), 48 S. W. 46; United States Exp. Co. v. Jenkins, 64 Wis. 542, 25 N. W. 549. "" Roberts v. Port Blakely Mill Co., 30 Wash. 25, 70 Pac. 111. '^ Cunningham v. State, 56 Nebr. 691, 77 N. W. 60; Longley v. Com- monwealth, 99 Va. 807, 37 S. E. 339. Where the defendant relies on cir- cumstantial evidence it is error to charge that the proved facts must not only be consistent with innocence but inconsistent with guilt. Sipes v. State, 120 Ga. 494, 48 S. E. 153. AVhere evidence is circumstantial, it is proper to instruct that the evi- dence must not only be consistent with the hypothesis of guilt but in- consistent with every other rational hypothesis. People v. Muhly, 15 Cal. App. 416, 114 Pac. 1017. An instruc- tion that the circumstance relied on must be proved to the entire satisfac- tion of the jury should also state that the circumstances must be in- consistent with any other reasonable hypothesis than the guilt of the ac- cused. State V. Hudson, 66 S. Car. 394, 44 S. E. 968, 97 Am. St. 768. §47 INSTRUCTIONS RULES. 72 tive,-^ or the defendant has admitted the commission of the crime.^^ It is the duty of the court to instruct on circumstantial evi- dence where the evidence of guilt is wholly circumstantial and such an instruction has been requested."' Where the evidence is both direct and circumstantial it would seem the better practice to define each class of evidence and explain the difference be- tween them,^^ but the cases are numerous which hold that it is unnecessary to charge on circumstantial evidence, unless the evi- dence is wholly circumstantial.^' It is not necessary to charge on circumstantial evidence where only the venue is disputed and not the fact of the offense.^" "= McCoy V. State, 170 Ala. 10, 54' So. 428; People v. Holden, 13 Cal. App. 354, 109 Pac. 49S; Moore v. State, 97 Ga. 759, 25 S. E. 362 ; Har- per V. State (Ga. App.), 11 S. E. 915; State v. Foster, 14 N. Dak. 561, 105 N. W. 938; Price v. State (Okla. Cr.), 131 Pac. 1102; Jones v. State (Tex. Cr.), 77 S. W. 802 (facts tes- tified to by eye-witnesses) ; Yancy v. State, 48 Tex. Cr. 166, 87 S. W. 693 ; Sellers v. State, 61 Tex. Cr. 140, 134 S. W. 348; Willcox v. State (Tex. Cr.), ISO S. W. 898 (eye-witnesses). Where evidence direct, no necessity for instruction on circumstantial evi- dence, though intent was proved by circumstances. Williams v. State, 58 Tex. Cr. 82, 124 S. W. 954. Where the evidence in a trial for murder was circumstantial and there was no question that the murder was committed, a charge was suffi- cient that the facts proved rnust be consistent with each other as to the guilt of the accused and taken together must be of a conclusive na- ture, producing a reasonable and moral certainty that the defendant "and no other person" committed the offense charged. Crow v. State, il Tex. Cr. 295, 39 S. W. 574. '"Dennis v. State, 118 Ala. 72, 23 So. 1002; Griner v. State, 121 Ga. 614, 49 S. E. 700; State v. Harbour, 27 S. Dak. 42, 129 N. W. 565, Ann. Cas. 1913 D, 324; Whitehead v. State, 49 Tex. Cr. 123, 90 S. W. 876; Wor- sham V. State, 56 Tex. Cr. 253, 120 S. W. 439; Ellington v. State, 63 Tex. Cr. 420, 140 S. W. 1102; State v. Overson, 30 Utah 22, 83 Pac. SS7. =' Jones V. State, 105 Ga. 649, 31 S. E. 574; Middleton v. State, 7 Ga. App. 1, 66 S. E. 22; Lepinsky v. State, 7 Ga. App. 285, 66 S. E. 965 ; Harvey V. State, 8 Ga. App. 660, 70 S. E. 141 ; State V. Hubbard, 223 Mo. 80, 122 S. W. 694; Scott v. State (Tex. App), 12 S. W. 504; Arismendis v. State, 41 Tex. Cr. 374, 54 S. W. 599; Will- iams V. State, 58 Tex. Cr. 82, 124 S. W. 954; Bonner v. State, 58 Tex. Cr. 195, 125 S. W. 22; State v. Romeo (Utah), 128 Pac. 530. =' Joiner v. State, 105 Ga. 646, 31 S.'E. 556. =" Benton v. State, 9 Ga. App. 422, 71 S. E. 498; State v. Nerzinger, 220 ]\Io. 36, 119 S. W. 379; Boswell v. State, 59 Tex. Cr. 161, 127 S. W, 820; Jones V. State, 59 Tex. Cr. 559, 129 S. W. 1118. '° Stedham v. State, 40 Tex. Cr. 43, 48 S. W. 177. 73 SUBJECT-MATTER'. § 50 § 48. Positive and negative testimony. The court may charge the law as to the comparative value of positive and negative testimony where both kinds of testi- mony are before the jury.'^ It is error to charge without qualification that "positive evi- dence is stronger than negative."^^ The state is required to prove the guilt of accused by positive evidence.^' § 49. Presumptions from flight. In criminal cases where there is evidence of flight by the accused after the commission of the crime, the court may mention that fact and tell the jury that this may be consid- ered by them as a circumstance bearing on the guilt of the accused with all the other evidence in the case.^* The court is not required to charge that the fact that the de- fendant gave himself up tends to lessen criminating circum- stances.^'* The mere fact that accused was arrested in another state does not justify the giving of an instruction on the infer- ence which may be drawn from flight.^" But the court should not instruct that the fact that accused made no effort to escape should be considered as evidence of his innocence.^' § 50. Confessions in criminal cases. The court should instruct that confessions must be freely made, without being induced by fear of injury or hope of "Heywood v. State (Ga. App.), 11 ==Dodd v. State (Tex. Cr.), 82 S. S. E. 1130. W. 510. ''Minor V. State, 120 Ga. 490, 48 "State v. Thomas, 58 Kans. 805, 51 S. E. 198. The rule relating to the Pac. 228. distinction between positive and nega- ""Cobb v. State, 115 Ala. 18, 22 So. tive evidence should not be given 506; Thomas v. State, 47 Fla. 99, when there are two witnesses having 36 So. 161 ; State v. Knowles, 185 equal facilities for seeing or hearing Mo. 141, 83 S. W. 1083. the thing about which they testified ""State v. Evans, 138 Mo. 116, 39 and directly contradicting each other, S. W. 462, 60 Am. St. 549. one of them directly testifying that it " Reed v. State, 66 Nebr. 184, 92 occurred and the other that it did not. N. W. 321. Skinner v. State, 108 Ga. 747, 32 S. E. 844. §51 INSTRUCTIONS RULES. 74 benefit, and must be corroborated, and should be scanned with great caution.^* The jury should be instructed to disregard confession not vol- untarily made.^" The main rule does not apply in strictness to incriminatory statements not amounting to a confession.*" It has been held, however, that a charge on the subject of confes- sions was proper where there was evidence that accused while under arrest expressed a desire out of court to begin to serve his sentence.*^ The practice of instructing in the language of the code as to the effect to be given to the defendant's statement is commended.*^ § 51. Presumptions of innocence. In a criminal prosecution the accused is entitled to an in- struction that he enters on the trial of his case with the pre- sumption of innocence in his favor and that this presumption attends him throughout the trial or until it is met and over- come by legal and competent evidence.*^ '"People V. Tibbs, 143 Cal. 100, l(i Pac. 904 (should be viewed with cau- tion) ; Davis v. State, 7 Ga. App. 680, 67 S. E. 839; State v. Jackson, 103 Iowa 702, 73 N. W. 467 (viewed with caution). A jury was sufficiently cau- tioned not to consider the confession of one defendant as against the others by a charge that a confession by any one or more of the defendants "would only apply to the one making it and would not inculpate any other one of them so far as that particular con- fession is concerned." Nobles v. State, 98 Ga. 12,, 26 S. E. 64, 38 L. R. A. 577. ""Shaw V. United States, 180 Fed. 348; State v. Bennett, 143 Iowa 214, 121 N. W. 1021 ; State v. Brooks, 220 Mo. 74, 119 S. W. 353; Heddendorf V. State, 85 Nebr. 747, 124 N. W. ISO. The accused is not entitled to a charge on the competency of a con- fession elicited from the state's wit- nesses on cross-examination and with- out objection by the state. Luna v. State (Tex. Cr.), 47 S. W. 656. Where confession of defendant was admitted as evidence and there was no evidence that the confession was not voluntary, a charge that the jury could take the whole of the confes- sion as true or any portion of it like any other evidence in the case was proper. State v. Barker, 56 Wash. 510, 106 Pac. 133. "Bridges V. State, 9 Ga. App. 235, 70 S. E. 968. "Abrams v. State, 121 Ga. 170, 48 S. E. 965. •^ Glover v. State, 137 Ga. 82, 72 S. E. 926. *■ Holt V. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. ed. 1021; Bryant v. State, 116 Ala. 445, 23 So. 40; Rogers v. State, 117 Ala. 192, 23 So. 82; Long v. State, 42 Fla. 509, 28 So. 775; Hodge v. State, 116 Ga. 75 SUBJECT-MATTER. § 52 This presumption is a fact in the case/* and is not to be dis- paraged by the court." § 52. Credibility of witnesses. The court should lay down general rules of law for deter- mining, (1) the credibility of witnesses; (2) and this imposes the duty of pointing out that, where a witness has wilfully testified falsely upon one material point, his entire evidence may be rejected; (3) of directing attention to contradictions; (4) and of explaining the effect of a witness' interest in the suit. (i) The court should announce general rules of law for the guidance of the jury in determining the credibility of witnesses.** While it is the province of the jury to determine the ultimate credit to be given a witness and while the trial judge should avoid giving an instruction which implies a fixed opinion of his own as to the weight to be attached to particular testimony, gen- eral principles as to credibility may be laid down which will be of assistance to the jury in arriving at a correct determination of the issues/' The court may charge that, in determining weight and credibility, the jury should take into consideration the char- acter of the witness.** So where the jury are instructed that if 852, 43 S. E. 255; Richardson v. State, trial. It is more proper to say that 8 Ga. App. 26, 68 S. E. 518; Webb the presumption "attends" the ac- V. State, 11 Ga. App. 850, 76 S. E. cused and must prevail unless over- 990; Snell v. State, 50 Ind. 516; Peo- come by evidence that establishes pie V. Yund, 165 Mich. 504, 128 N. guilt beyond a reasonable doubt. Em- W. 742; State v. Baker, 136 Mo. 74, ery v. State, 101 Wis. 627, 78 N. W. 37 S. W. 810; State v. Harrison, 23 145. Mont. 79, 57 Pac. 647; Flournoy v. "Bailey v. State, 168 Ala. 4, 53 So. State, S7 Tex. Cr. 88, 122 S. W. 26; 296; Chaney v. State (Ala), 59 So. McDowell V. State (Tex. Cr.), 155 604; McVey v. State, 55 Nebr. 777, S. W. 521; State v. Mayo, 42 Wash. 76 N. W. 438; State v. Marston, 82 540, 85 Pac. 251. It is not reversible Vt. 250, 72 Atl. 1075. error to refuse an instruction on the "State v. Romeo (Utah), 128 Pac. presumption of innocence when the 530. court has fully instructed on the doc- "Heddle v. City Elec. R. Co., 112 trine of reasonable doubt. State v. Mich. 547, 70 N. W. 1096. Maupin, 196 Mo. 164, 93 S. W. 379. It "Heddle v. City Elec. R. Co., 112 has been held that it is not accurate Mich. 547, 70 N. W. 1096. to instruct that the presumption of "Harrison v. Lakenan, 189 Mo. innocence "prevails" throughout the 581, 88 S. W. S3, 107 Am. St. 380. 52 INSTRUCTIONS RULES. 76 the reputation of a certain witness for truth and veracity is bad, such fact may be considered, there can be no vaHd objection pro- vided the instruction is predicated upon the evidence in the case.** But, while the jury have the undoubted right to observe a witness upon the stand and to taise into account his appearance and de- meanor, as affecting credibiHty, the court should refrain from instructing them that it is their duty to do so.^" (2) Where a witness has wilfully testified falsely concerning a matter material to the issue, the court should instruct that the jury may disregard his entire testimony.°^ Where the testimony of a witness is of such a character that it may fairly induce the belief that he has wilfully testified falsely on a material matter, the jury should be told of their right to re- ject the entire evidence of the witness and it is error to refuse the instruction.^^ But before an instruction of this kind may be given the court must determine whether the facts and circum- stances in evidence afford a sufficient basis for the applicaltion of the rule.^^ (3) Where the evidence is contradictory, the court should direct attention to this fact as bearing on credibility.''* Thus where the testimony of a witness stands alone, with no corroborating circumstance in support of it, and is contradicted by the testimony of several other witnesses, the jury's attention should be directed to the situation and credibility of the wit- "LaFevre v, DuBrule, 71 III. App. such an instruction is not improper. 263. Sampson v. St. Louis &c. R. Co., "Heenan v. Howard, 81 111. App. 156 Mo. App. 419, 138 S. W. 98. 629. "'Peckhara v. Lindell Glass Co., 7 '^'Aycock V. Schwartzchild &c. Co., Mo. App. 563. 4 Ala. App. 610, 58 So. 811 ; Spear "' Pumorlo v. Merrill, 125 Wis. 102, V. United Railroads, 16 Cal. App. 637, 103 N. W. 464. 117 Pac. 956; Hartpence v. Rogers, "Where a written statement by 143 Mo. 623, 45 S. W. 650. The giv- plaintiff's chief witness is introduced ing or refusing of an instruction that contradicting his testimony, the duty the jury may disregard the entire tes- of the court is limited to calhng the timony of witnesses whom they be- attention of the jury to the discrep- lieve to have wilfully testified falsely ancy, and cautioning them as to their rests largely in the discretion of the duty in passing on his credibility, trial court, and, where the evidence Danko v. Pittsburg R. Co., 230 Pa. is sharply conflicting, the giving of 295, 19 Atl. 511. ■J-] SUBJECT-MATTER. " § 52 ness." So where the testimony of a witness is in direct contra- diction to that given by him on a former trial on the same point, an instruction should not be refused which tells the jury that if they believe the evidence as so given in the former action, then they must discredit the contradictory statements made in the later suit/* But the court need not instruct on the matter of credibility where statements are not necessarily in conflict, as where a plaintiff testifies that a railway switch was defective, and, on cross-examination, says he made only a casual observation of it." (4) The court should point out the effect of a witness' interest in the suit, as bearing on the question of his credibility.^* The law recognizes tests and methods to be applied to testi- mony in enabling the jury to determine credibility and one of such tests is that they have the right to consider the interest of a witness and his manner of testifying.^* And the common-law rule that the testimony of an interested party is to be weighed in the light of such interest is not abrogated by a federal statute providing that no witness shall be excluded because he is a party to or interested in the issue tried. The jury's attention should be called to the party's interest and it is then for the jury to say to what extent, if at all, the credibility of the witness is affected."" For it is not only proper, but it is the duty of the jury to con- sider a party's interest, as well as every other fact and circum- stance which may reasonably bear upon weight and credibility.""- "Fineburg v. Second &c. St. Pass, for injuries that the jury might con- R. Co., 182 Pa. St. 97, il Atl. 925. sider friendship as bearing on the °°0'Leary v. Buffalo Union Fur- credit of witnesses, together with the nace Co., 100 App. Div. 136, 91 N. Y. contradictory statements made by S- 579. plaintiff, if any, as bearing on the °' Logan V. Metropolitan St. R. Co., weight to be given his evidence. Bir- 183 Mo. 582, 82 S. W. 126. mingham R. &c. Co. v. Glenn (Ala,), °'Vogel v. Herzfeld-Phillipson Co. 60 So. 111. (Wis.), 134 N. W. 141. An em- "Lancashire Ins. Co. v. Stanley, 70 ploye is an interested witness when Ark. 1, 62 S. W. 66. his master is sued for the negligent °° Denver City Tramway Co. v. Nor- act of the employe. Harris v. Fifth ton, 141 Fed. 599. ^Ave. Coach Co., 132 N. Y. S. 743. °'Kavanaugh v, Wausau, 120 Wis. 'Not improper to charge in an action 611, 98 N. W. 550. §53 INSTRUCTIONS RULES. 78 Hence an instruction is correct which informs the jury that in passing upon the testimony of any witness they "have a right to take into consideration the interest any such witness may have in the result of this trial and the manner of testifying." And it is not sufficient to tell the jury that, in determining credibility, they may use their common experience and common sense."^ However open the practice may be to criticism, yet the court should not instruct that it is the ethical duty of an attorney to retire from the trial of a case in which he appears as a witness.^^ § 53. Credibility of witnesses in criminal cases. The court in criminal prosecutions should set forth in his instructions rules of law for the guidance of the jury in deter- mining the credibility to be given to the testimony of the wit- nesses,"* such, for example, as the accused,"^ interested wit- nesses generally,"" impeached witnesses,"' accomplices,"^ ex- perts,"' detectives,'" ex-convicts,'^ and witnesses whose testi- mony is false in part.''' ""Lancashire Ins. Co. v. Stanley, 70 Ark. 1, 62 S. W. 66. See also, Chi- cago &c. R. Co. V. Spurney, 69 111. App. 549. "" Fletcher v. Ketcham (Iowa), 141 N. W. 916. "^ Grant v. State, 122 Ga. 740, 50 S. E. 946. °° Weaver v. State, 1 Ala. App. 48, 55 So. 956; State v. Tough, 12 N. Dak. 425, 9(, N. W. 1025; State v. Porter, 32 Ore. 135, 49 Pac. 964; Cooper V. State, 123 Tenn. Z1, 138 S. W. 826. ""Weaver v. State, 1 Ala. App. 48, 55 So. 956; Chezem v. State, 56 Nebr. 496, 76 N. W. 1056; Horton v. Com- monwealth, 99 Va. 848, 38 S. E. 184. "'Walker v. State, 137 Ga. 398, 73 S. E. 368. ™ Suddeth v. State, 112 Ga. 407, Zl S. E. 747; Melton v. State, 116 Ga. 582, 42 S. E. 708; State v. Meysen- burg, 171 Mo. 1, 71 S. W. 229; Wil- son v. State, 41 Tex. Cr. 115, 51 S. W. 916. Instruction sufficient which defines accomplices as all persons who participate in an offense as principal and principal as all persons acting together in the commission of an offense. Hilton v. State, 41 Tex. Cr. 190, 53 S. W. 113. "The court can not charge as a matter of law that opinion evidence must be received with caution, and that where there is an honest differ- ence of opinion among qualified ex- perts the jury ought not to convict. Commonwealth v. Howard, 205 Mass. 128, 91 N. E. 397. '" State V. Shew, 8 Kans. App. 679, 57 Pac. 137. "Under a Nebraska statute a prior conviction of a felony may be proved for the purpose of affecting the credi- bility of a witness and the court may properly instruct the jury as to the purpose of such evidence. Keating v. State, 67 Nebr. 560, 93 N. W. 980. . "State V. Allen, 111 La. 154, 35 So. 495. 79 SUBJECT-MATTER. §53 The jury are the sole judges of the credibility of witnesses and the weight that should be given to their testimony and it is proper so to charge the jury.'' But this does not forbid instructions as to the tests to be applied to the testimony by the jury. The court should, accordingly, instruct that the accused is a competent witness in his own behalf and that his testimony is entitled to whatever weight the jury may give it.''* The court should not disparage the testimony of the accused,''^ but attention may be directed, however, to his interest in the result of the case.'^^ On the question of the credibility of witnesses the court may direct the jury to consider their relationship to the accused, ''' and the fact that they are paid detectives, if that is a fact shown by the evidence.'* An instruction on the effect of impeachment may be given only where evidence tending to impeach witnesses in some "Brown v. State, 142 Ala. 287, 38 So. 268; Mcintosh v. State, 151 Ind. 251, 51 N. E. 354; State v. Maupin, 196 Mo. 164, 93 S. W. 379. An in- struction is proper to reject the evi- dence of witnesses if their testimony is not believed. State v. Minor, 106 Iowa 642, 77 N. W. 330. Not error to instruct the jury that they are the sole judges of the credibility of the witnesses and they have the right to believe or not any witness who has testified where the instruction is mod- ified so as to tell them that they can not arbitrarily disregard the testi- mony of a witness unless they be- lieve it to be untrue. State v. Legg, 59 W. Va. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152. "McVay v. State (Miss.), 26 So. 947; State v. Fredericks, 136 Mo. 51, 37 S. W. 832; State v. Martin, 230 Mo. 680, 132 S. W. 595. Accused not entitled to an instruction on his evi- dence where it was simulated and at variance with the physical facts to the testimony of all the witnesses. State v. Pollard, 139 Mo. 220, 40 S. W. 949. '= Blanton v. State, 52 Fla. 12, 41 So. 789; People v. Arnold, 248 111. 169, 93 N. E. 786; Commonwealth v. Howard, 205 Mass. 128, 91 N. E. 397 ; Bridges v. United States, 3 Okla. Cr. 64, 104 Pac. 370; Manning v. State, 5 Okla. Cr. 532, 115 Pac. 612 (defend- ant's testimony singled). Improper to use language calculated to impress the jury that they ought to be cau- tious in giving credit to what was testified to by accused. Alexander v.. State, 114 Ga. 266, 40 S. E. 231. ™Bell V. State, 170 Ala. 16, 54 So. 116; State v. Boyer, 232 Mo. 267, 134 S. W. 542; Cooper v. State, 123 Tenn. 37, 138 S. W. 826. " Keesier v. State, 134 Ind. 242, 56 N. E. 232; State v. Napper, 141 Mo. 401, 42 S. W. 957; Van Buren v. State, 63 Nebr. 453, 88 N. W. 671; State V. Apple, 121 N. Car. 584, 28 S. E. 469. '* State V. FuUerton, 90 Mo. App. 411; Sandage v. State, 67 Nebr. 240, 85 N. W. 35, 87 Am. St. 457; State _v. Boynton, 155 N. Car. 456, 71 S. E. 341. Postoffice inspectors are not paid detectives in the sense of the prin- ciple that the jury should scrutinize the testimony of such detectives. Lor- § 54 INSTRUCTIONS RULES. 8o of the modes prescribed by law has been introduced/* The jury- should be instructed that the evidence of an accomplice must be received with great caution unless corroborated by the evidence of others/" Instructions are also proper that if the jury believe a witness has wilfully sworn falsely to any material fact they are at liberty to disregard his entire testimony except as corroborated by other credible evidence or by facts proved on the trial/^ The court may charge that the jury may give consideration to the ap- pearance and demeanor of the witnesses, their manner of testify- ing, their apparent candor and fairness, their bias or prejudice, their apparent intelligence, their interest in the result, and all other surrounding circumstances/^ § 34. Failure of party to testify in his own behalf or call ma- terial witness. In many jurisdictions it is not allowed the court to instruct that the failure of a party to testify in his own behalf or to call a material witness would give the jury a right to assume that the testimony if given would be detrimental to the party enz V. United States, 24 App. D. C. of law and failure to comply with it 237. is not error. State v. Hier, 78 Vt. ™ Bennett v. State, 160 Ala. 25, 49 488, 63 Atl. 877. The question of So. 296 (instruction on contradictory whether a witness was an accomplice statements) ; Fraeman v. State, 112 is properly submitted to the jury by Ga. 48, 37 S. E. 172. Proper to an instruction leaving to the jury charge that if any witness has been to determine whether any witness impeached his entire testimony may was an accomplice and defining an be disregarded unless corroborated accomplice. Clay -v. State, IS Wyo. by other testimony not so impeached. 42, 86 Pac. 17. Churchwell v. State, 117 Ala. 124, 23 '^ State v. Wain, 14 Idaho 1, 80 So. 72. The credibility of a witness Pac. 221; Boykin v. State, 86 Miss, is for the jury and it is not error to 481, 38 So. 725 ; State v. Wofford instruct that a witness may be be- (Miss.), 56 So. 162; Titterington v. lieved though impeached for general State, 75 Nebr. 153, 106 N. W. 421; bad character. Ector v. State, 120 State v. Burns, 27 Nev. 289, 74 Pac. Ga. 543, 48 S. E. 315. 983. '"State V. Black, 143 Mo. 166, 44 ^Tucker v. State, 64 Fla. 518, 59 S. W. 340; Crenshaw v. State, 48 So. 941; State v. Hoshor, 26 Wash. Tex. Cr. 77, 85 S. W. 1147. The rule 643, 67 Pac. 386. is a rule of practice and not a rule 8 1 SUBJECT-MATTER. § 54 who should have testified or called the witness.^® Other jurisdictions permit the practice.'* The right of a party to testify in his own behalf is a personal privilege/^ and there seems no reason why he should be compelled to establish his case by his own testimony if it can be established by the evidence of other competent and disinterested witnesses.*" This does not prevent counsel from commenting on the failure to introduce such testimony.^' Says the Supreme Court of Con- necticut: "The circumstance that a particular person, who is equally within the control of both parties, is not called as a wit- ness, is too often made the subject of comment before the jury. Such a fact lays no ground for any presumption against either party. If the witness would aid either party, such party would probably produce him. As he is not produced, the jury have no right to presume anything in respect to his knowledge of any facts in the case, because they are to try the case upon the facts shown in the evidence, and upon them alone, without attempting to guess at what might be shown if particular persons were pro- duced by the parties."*' It would seem clear that an instruction as to inferences from failure to introduce evidence to rebut a charge should not be given where the reason for this failure was that the party relied on the improbability of the evidence intro- "^ Carter v. Chambers, 79 Ala. 223; Pac. 686; Union Bank v. Stone, SO Bates V. Morris, 101 Ala. 282, 13 So. Maine 595, 79 Am. Dec. 631; Brooks 138; Worthington v. Curd, 15 Ark. v. Steen, 6 Hun (N. Y.) 516; Ripley 491; Mortimer v. Daub (Ind. App.), v. Second Ave. R. Co., 8 Misc. 449, 98 N. E. 845; Miller v. Dayton, 57 28 N. Y. S. 683; Goldstein v. Brook- Iowa 423, 10 N. W. 814; Cross v. lyn Heights R. Co., 69 App. Div. 617, Lake Shore &c. R. Co., 69 Mich. 363, 74 N. Y. S. 1017; Paverman v. Jo- il N. W. 361, 13 Am. St. 399; Hitch- line, 120 N. Y. S. 64; Steininger v. cock V. Davis, 87 Mich. 629, 49 N. Hoch, 42 Pa. 432; Frick v. Barbour, W. 912, 13 L. R. A. 625, 24 Am. St. 64 Pa. 120; Collins v. Leafey, 124 Pa. 186; Westing v. Chicago &c. R. Co., 203, 16 Atl. 765, 10 Am. St. 578. 87 Nebr. 655, 127 N. W. 1076; Bank "= Moore v. Wright, 90 111. 470. of Statesville v. Pinkers, 83 N. Car. '"Westing v. Chicago &c. R. Co., ill; Ellison v. Rix, 85 N. Car. 11; 87 Nebr. 655, 127 N. W. 1076. Cox v. Norfolk &c. R. Co., 126 N. "'Cross v. Lake Shore &c. R. Co., Car. 103, 35 S. E. 237; Claiborne v. 69 Mich. 363, Zl N. W. 361, 13 Ara. Tanner, 18 Tex. 68. St. 361. "Sesler v. Montgomery (Cal.), 19 " Scovel v. Baldwin, 27 Conn. 316. 6 — Branson's Inst. § 55 INSTRUCTIONS RULES. 82 duced in support of the claim.** In any event attention should not be called to the fact of failure of a party to produce docu- ments to sustain his contention where such documents are not in his possession but in the possession of third persons.^" Nor should the court comment on the failure to call a witness who has no other or better knowledge of the matter in dispute than those who are produced and testify.*^ § 55. Failure of defendant in criminal case to testify. The court in a criminal prosecution may charge that the jury should not consider the failure of the defendant to tes- tify as a circumstance against him.°^ The court may make this charge in the language of the stat- ute,'* and tell the jury that the failure of accused to testify shall not be taken as a circumstance against him, and must not be alluded to, commented on, or discussed by them on their retire- ment.** The court is not required on his own motion to instruct on this question.*' "Smith V. Chicago City R. Co., 257, 45 S. W. 694; Lounder v. State, 165 111. ApB. 190. 46 Tex. Cr. 121, 79 S. W. SS2; Kin- " Harrison v. Riser, 79 Ga. 588, 4 kead v. State, 61 Tex. Cr. 651, 135 S. E. 320. S. W. 573. Court should instruct on " Fitzpatrick v. Woodruff, 47 N. Y. unwarranted argument of prosecuting Super. Ct. 436. attorney respecting failure of accused '= Thomas v. State, 139 Ala. 80, 36 to testify. Commonwealth v. Rich- So. 734, 101 Am. St. 17; State v. Levy, mend, 207 Mass. 240, 93 N. E. 816. 9 Idaho 483, 75 Pac. 227; State v. The court should not call attention Goff, 61 Kans. 104, 61 Pac. 683 ; State to the fact that accused had not testi- V. Olsen, 88 Kans. 136, 127 Pac. 625; fied when the prosecution relied on State V. Johnson, 50 La. Ann. 138, 23 the testimony of eye-witnesses. Peo- So. 199; Commonwealth v. Brown, pie v. Peterson, 166 Mich. 10, 131 N. 167 Mass. 144, 45 N. E. 1; People v. W. 153. Provost, 144 Mich. 17, 107 N. W. "Lillie v. State, 72 Nebr. 228, 100 716; Haynes v. State (Miss.), 27 So. N. W. 316; State v. Wisnewski, 13 601 ; State v. Fuller, 34 Mont. 12, 85 N. Dak. 649, 102 N. W. 883. Pac. 369, 8 L. R. A. (N. S) 762; "Dougherty v. State, 59 Tex. Cr. State v. Currie, 13 N. Dak. 655, 102 464, 128 S. W. 398. N. W, 875,. 69 L. R. A. 405, 112 Am. '= State v. Magers, Z(, Ore. 38, 58 St 687; Guinn v. State, 39 Tex. Cr. Pac. 892. 83 SUBJECT-MATTER. § 56 § 56. Alibi in criminal cases. Where the issue of alibi is raised by the evidence, the jury should be instructed to acquit, if there is any reasonable doubt as to the presence of the accused at the time and place where the crime was committed."* The instruction on alibi need not be repeated f and it may be submitted together will all the evidence instead of being treated as an independent issue.®* The court should not disparage the defense,"' though he may advise the jury to scan the evidence on the subject with care and attention.^ The instruction should be requested where not given by the court on his own motion.^ It is not required that the court shall specifically call the attention of the jury to the issue of alibi where there is evidence that the place was as alleged in the indictment and none to the contrary.' Where the question is properly submitted, it is not prejudicial error to tell the jury that they have nothing to do with the law question involved in determining the proper venue.* "Jordan v. State, SO Fla. 94, 39 especially in cases of importance. So. 155; State v. Davis, 186 Mo. 533, Henry v. State, 51 Nebr. 149, 70 N. 85 S. W. 354; State v. Shelton, 223 W. 924, 66 Am. St. 450. Mo. 118, 122 S. W. 732; State v. 'State v. Worthen, 124 Iowa 408, Brown, 247 Mo. 715, 153 S. W. 1027; 100 N. W. 330. Not improper to State V. Spotted Hawk, 22 Mont. 33, charge that defendant must prove an 55 Pac. 1026 ; Joy V. State (Tex. Cr.), alibi by a fair balance of the evi- 51 S. W. 935; Rountree V. State (Tex. dence; that if the jury were satis- Cr.), 55 S. W. 827; Stripling v. State, fied beyond any question that an alibi 47 Tex. Cr. 117, 80 S. W. 376. was a fabricated defense it was evi- " Cook V. People, 177 111. 146, 52 dence, though not conclusive, of guilt, N. E. 273. and that if the jury were not satis- " State V. Powers, 72 Vt. 168, 47 fied with the alibi they could not Atl. 830. throw it out of the case but must con- " State V. Crowell, 149 Mo. 391, SO sider it with other evidence. State v. S. W. 893, 73 Am. St. 402. It was Hier, 78 Vt. 488, 63 Atl. 877. error for the court to advise the jury " State v. Lightfoot, 107 Iowa 344, that the defense of alibi was one 78 N. W. 41. "easily fabricated, that it has occa- "Commonwealth v. Kjiiser, 184 Pa. sionally been successfully fabricated 493, 39 Atl. 299. and that the temptation to resort to *Goldsberry v. State, 92 Nebr. 211, it as a spurious defense is very great, 137 N. W. 1116. § 57 INSTRUCTIONS RULES. 84 § 57. Instruction to disregard testimony erroneously re- ceived. Wherever incompetent evidence is for any cause admitted, the court should instruct the jury to disregard it." Thus if the evidence is of such a character as to justify its ex- clusion on motion, the jury may be instructed not to take it into consideration.® So the jury should be told to ignore testimony which has been admitted with the understanding that it is to be followed up by other evidence making it competent and such ad- ditional evidence is not forthcoming/ or testimony which has been admitted improperly/ or inadvertently," or which is not ma- terial to the issue.^" The jury should be instructed to disregard statements by counsel, not sworn as witnesses, as to their per- sonal knowledge of witnesses made to discredit them.^^ Where, however, the court has ruled that certain evidence is inadmissible, there is no necessity for an instruction to disregard it." The = State V. Roupetz, 73 Kans. 663, &c. R. Co. v. Stein, 142 Ky. 515, 134 85 Pac. 778. The court may charge S. W. 1169; Gutzweiler v. Lackmann, the jury to disregard all evidence they 39 Mo. 91. Where a complaint claims find to be false. Allen v. United items of damages not recoverable for States, 164 U. S. 492, 17 Sup. Ct. 154, the injury alleged, special instructions 41 L. ed. 528. Where evidence is or- may be asked excluding evidence as dered rejected after it has gone to to such items. Marsicano v. Phillips, the jury the court in admonishing as 6 Ala. App. 229, 60 So. 553. to the exclusion of such evidence " Price v. Wood, 9 N. Mex. 397, 54 should specify it in detail and should Pac. 231 ; Hall v. Earnest, 36 Barb. name the witnesses from whom it (N. Y.) 585. has been elicited in order to identify '"Utter v. Vance, 7 Blackf. (Ind.) it. Bess V. Commonwealth, 116 Ky. 514; White v. Gray, 32 Mo. 447; 927, n S. W. 349. Devling v. Williamson, 9 Watts (Pa.) "Foxworth V. Brown, 120 Ala. 59, 311. 24 So. 1. "Van Alstine v. Kamicki, 109 Mich. ' Fatten v. Elk River Nav. Co., 13 318, 67 N. W. 502. W. Va. 259. ^■' Grand Rapids &c. R. Co. v. Horn, 'Bedell v. Janney, 9 111. 193; Pitt- 41 Ind. 479; State v. Tracy, 21 N. man v. Gaty, 10 111. 186; Chesapeake Dak. 205, 129 N. W. 1033. 8s SUBJECT-MATTER. 158 error in refusing to direct the jury to disregard improper evi- dence is not fatal where it is apparent that the jury did disre- gard it." § 58. Special verdicts. Where the jury are requested to find a special verdict, they should be instructed only as to the matters to be considered by them to make their answers/* and general instructions should be omitted.^^ Thus instructions generally on the law of the case should be refused/" and an instruction as to the legal effect of a special finding is objectionable.^^ "Frizelle v. Kaw Val. Paint &c. Co., 24 Mo. App. 529. " Tarbell v. Forbes, 177 Mass. 238, SS N. E. 873; Earnhardt v. Clement, 137 N. Car. 91, 49 S. E. 49; Morrison V. Lee, 13 N. Dak. 591, 102 N. W. 223; Byington v. Merrill, 112 Wis. 211, 88 N. W. 26. When a special verdict is required courts should not charge on the general law further than is necessary to assist in answer- ing each interrogatory propounded. Lathrop v. Fargo-Moorhead St. R. Co., 23 N. Dak. 246, 136 N. W. 88. "Louisville &c, R. Co. v. Lynch, 147 Ind. 165, 44 N. E. 997, 46 N. E. 471, 34 L. R. A. 293; Moore v. Pier- son (Tex. Civ. App.), 93 S. W. 1007; Klatt V. N. C. Foster Lumber Co., 91 Wis. 641, 11 N. W. 563. ^° Louisville &c. R. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Boyce v. Schroeder, 21 Ind. App. 28, 51 N. E. Zl(>. " Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758. CHAPTER IV. FORM AND ARRANGEMENT. Section 59. Importance of form and arrange- ment. 60. Written instructions. 61. Marking and signing instructions. 62. Reading instructions to the jury. 63. Clearness of expression. 64. Repetition of instructions. 65. Repetition of instructions in criminal cases. 66. Limitation on number of instruc- tions. 67. Reference to pleadings for issues. 68. Reading from statutes. 69. Quotations from decisions. Section 70. Misleading instructions. 71. Contradictory instructions. 72. Undue prominence to particular features. 7i. Undue prominence to matters of evidence. 74. Undue prominence in criminal cases. 75. Argumentative instructions. 76. Argumentative instructions in criminal cases. 77. Appeals to sympathy or preju- dice. 78. Special findings. § 59. Importance of form and arrangement. Great importance is not attached to the matter and form of instructions provided they are germane to the issues and are correct statements of the law.^ The court is not required to cover every phase of a case in a single instruction/ and he may include more than one proposi- tion of law in one instruction.^ Instructions are sufficient if they point otit all the issues involved. It is therefore ordinarily un- necessary for instructions bearing on different points to be classi- ^ Deaver v. Deaver, 137 N. Car. 240, 49 S. E. 113; McClintic v. Ocheltree, 4 W. Va. 249. "The fact that nicety of verbal criticism might suggest the use of a particular word more ap- propriate under the circumstances than the special word or phrase em- ployed by the judge in his charge is not ground for new trial where com- paring the complaint with the con- text, it is apparent that the sense in which the inappropriate word was used is unmistakable, and the instruc- tion (as it must have been under- stood by the jury) is pertinent and correct." Orr v. Planters' Phosphate &c. Co., 8 Ga. App. 59, 68 S. E. 779. "Allen V. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673. ^ Gemmill v. Brown, 25 Ind. App. 6, 56 N. E. 691. If an instruction groups several propositions together, but guides the jury so as to show un- der what circumstances a plaintiff may recover, it is not open to ex- ception. Louisville &c. R. Co. v. Veach, 20 Ky. L. 403, 46 S. W. 493. 86 8y FORM AND ARRANGEMENT. § 6o fied and arranged or set out in separate and distinct paragraphs.* The object of a charge is to explain the legal principles appli- cable to the case, rather than to teach the jury the law, and hence whatever is extraneous should, as far as possible, be eliminated, and it is therefore improper practice to read a reported case to the jury,° or to set out a complaint in full, including the caption and signatures of counsel.® A charge is also open to criticism which covers several distinct questions in a fragmentary man- ner.' The practice of giving instructions by means of selections from the requests of both parties, together with general instruc- tions from the court, is condemned by one of the cases as having a tendency to obscure rather than to clarify the issues.* § 60. Written instructions. A provision in a state constitution or statute requiring ip.- structions to be in writing is mandatory and must be obeyed,* unless provision is made for an express waiver.^" Thus where all instructions are required to be in writing, as in Illinois, the rule must be followed in the case of peremptory instructions as well as in other cases. Where, therefore, the rec- * Meyer v. Boepple Button Co., 112 "Cutter v. People, 184 111. 395, 56 Iowa 51, 83 N. W. 809, 51 L. R. A. N. E. 412; Dalton v. Dalton (Tex. 141, 84 Am. St. 323. Civ. App.), 143 S. W. 241. In Wash- °Lendberg v. Brotherton Iron Min. ington the parties may stipulate that Co., 75 Mich. 84, 42 N. W. 675. the instructions may be made partly "Evansville Gas &c. Co. v. Robert- oral and partly written. Wheeler v. son (Ind. App.), 100 N. E. 689. Hotel Stevens Co., 71 Wash. 142, 127 ' Schaidler v. Chicago &c. R. Co., Pac. 840. The statutory requirement 102 Wis. 564, 78 N. W. 732. that instructions shall be in writing 'Marquette &c. R. Co. v. Marcott, may be waived by the accused in a 41 Mich. 433, 2 N. W. 795. felony case. State v. Andrews, 71 ■People V. Payne, 8 Cal. 341; Jar- Wash. 181, 127 Pac. 1102. The giv- necke v. Chicago Consol. Trac. Co., ing of oral instructions is authorized ISO III. App. 248; Belk v. Stewart, 160 only where the parties voluntarily as- Mo. App. 706, 142 S. W. 485. Under sent thereto, and the consent should a statute requiring a court to give be entered on the minutes at such general written instructions it is im- time, and in such manner as not to proper to read to the jury the stat- operate to the prejudice of the rights ute on which the action is based. It of either party. Forszen v. Hurd, should be incorporated in the in- 20 N. Dak. 42, 126 N. W. 224. structions. Chicago &c. R. Co. v. Murphy (Ind. App.), 101 N. E. 829. § 6o INSTRUCTIONS RULES. 88 ord fails to show the tender of a written instruction to find a ver- dict of not guilty, it can not be maintained that the court erred in not so instructing." So a statute making it incumbent upon the court to reduce instructions to writing, when required, is im- perative.^^ And where the constitution, as in Arkansas, provides that in jury trials the judges "shall reduce their charge or in- structions to writing on the request of either party," the direc- tion must be obeyed, and if the judge has entered upon an oral charge, he should refrain from proceeding further in this man- ner if requested by one of the parties to reduce the instruction to writing.^^ So also where the code provides that whenever in- structions are requested by either party, they must be reduced to writing and must be numbered and signed by the party or his attorney and delivered into court, they should be given in the form in which they are submitted, and the court is under no obligation, if the instructions are accepted, to rearrange them.^* The Indiana statute requiring written instructions on request is held only to require written instructions ^as to the law bearing on the merits of the controversy, and does not include directions to the jury as to their duties in relation to the answer of special interrogatories." In jurisdictions where oral charges are peiv mitted, the remedy for a misleading charge is to ask. a written explanatory charge.^" It is not required that the instruction shall be written in ink ; an instruction written with a lead pencil,^^ or a typewriter will suffice." Under a statute requiring judges to reduce their charges to writing the taking in shorthand of a charge delivered orally is not ordinarily sufficient.^^ "Chicago Hydraulic Press Brick ^"Schmidt v. First National Bank, Co. V. Campbell, 116 111. App. 322. 10 Colo. App. 261, 50 Pac. 733. "Atchison v. Jansen, 21 Kans. 560. ''Lett v. Eastern Moline Plow Co., Under the Georgia code the trial 46 Ind. App. 56, 91 N. E. 978. judge on request of counsel must re- "Birmingham R. &c. Co. v. Dem- duce his charge to writing and read it rains, 3 Ala. App. 359, 57 So. 404. to the jury and as soon as the charge " Harvey v. Tama Co., S3 Iowa 228, has been delivered give it to the clerk 5 N. W. 130. to be filed, and a failure to do so is "Kinyon v. Chicago &c. R. Co., reversible error unless the evidence 118 Iowa 349, 92 N. W. 40, 96 Am. demanded the verdict. Forrester v. St. 382. Cocke, 6 Ga. App. 829, 65 S. E. 1063. '° Burnett v. State, 72 Ark. 398, 81 "Arnold V. State, 71 Ark. 367, 74 S. W. 382; Lesueur v. State, 176 Ind. S- W. 513. 448, 95 N. E. 239; State v. Fisher, 89 FORM AND ARRANGEMENT. § 62 § 61. Marking and signing instructions. Instructions must be marked or signed as required by the statute or procedure of the jurisdiction. A statute requiring instructions given by the court to be signed by the judge and filed as a part of the record is mandatory.^" In jurisdictions requiring the instructions offered by a party to be marked "given" or "refused" the effect of the failure of the court to mark the instruction either way, is the same as if they had been formally marked refused.^^ The marking "given" or "re- fused" should be so made as not to mislead the jury. There is a case of this character where the court marked one form of verdict "give" and failed to mark the other form. This was held prejudicial as amounting to a direction to the jury to adopt the verdict bearilig the notation."^ In jurisdictions which re- quire requested instructions to be signed by counsel, the require- ment is generally held to be mandatory and the court may refuse an instruction not so signed.^^ The inadvertence of the judge to sign instructions can not be remedied by a nunc pro tunc entry.^* § 62. Reading instructions to the jury. Written instructions should be read to the jury by the judge in open court and then delivered to them to be taken to the jury room. T^he instructions should be read to the jury in open court,^® by 23 Mont. S40, 59 Pac. 919. But see 44 Pac. 588; Howard County v. Legg, State V. Mayo, 42 Wash. 540, 85 Pac. 110 Ind. 479, 11 N. E. 612; St. Louis 251. Southwestern R. Co. v. Cleland, 50 '"Hadley v. Atkinson, 84 Ind. 64. Tex. Civ. App. 499, 110 S. W. 122. "Calef V. Thomas, 81 111. 478. ''Bottorff v. Bottorff, 45 Ind. App. = People V. Marks, 251 111. 475, 96 692, 91 N. E. 617. N. E. 231. An instruction as to the ™ "Reading the charges is calculated forms of verdict all on one sheet was to impress the jury that instructions held not erroneous because the court prepared by counsel and given are wrote the word "given" in the mar- entitled to equal consideration with gin opposite the paragraph contain- the general charge of the court and ing the form to be used in case the to enable them more thoroughly to accused was found guilty. People v. comprehend the principles of law ap- Donaldson, 255 111. 19, 99 N. E. 62. plicable to the different aspects of the "^ Mason v. Sieglitz, 22 Colo. 320, case, by having their attention thus §63 INSTRUCTIONS RULES. 90 the judge. ^* The reading may, however, be waived by the par- ties" or they may be read by counsel upon agreement of the parties.^* But the practice of reading instructions by counsel "is one which should not be resorted to .except by consent of counsel or by reason of some exigency" which must be shown.^® The instructions must be taken to the jury room.'"' § 63. Clearness of expression. The language of an instruction should be (1) clear, (2) and should embody a definite and concise statement of the cause of action and the issues involved, (3) but a charge is legally sufficient if, as delivered, it is correct in substance and pre- sents the issues fairly to the jury. (i) The instructions should be plain, simple, concise, direct, unambiguous and consistent,^^ and this more especially where the case is close upon the evidence.^^ specially directed to the instructions." Alabama Great Southern R. Co. v. Arnold, 80 Ala. 600, 2 So. i27. "^ O'Dell V. Goff, 153 Mich. 643, 117 N. W. 59; Veneman v. McCurtain, 33 Nebr. 643, SO N. W. 955. ''Talty V. Lusk, 4 Iowa 469. ■"Leaptrot v. Robertson, 44 Ga. 46; O'Dell V. Goff, 153 Mich. 643, 117 N. W. 59. '' O'Dell V. Goff, 153 Mich. 643, 117 N. W. 59. °° Alabama Gt. Southern R. Co. v. Arnold, 80 Ala. 600, 2 So. 327. =' Fuller V. Stevens (Ala.), 39 So. 623; Bailey v. State, 168 Ala. 4, 53 So. 296 (incomplete sentence) ; Fitts V. Southern Pac. Co., 149 Cal. 310, 86 Pac. 710, 117 Am. St. 130; Chi- cago City R. Co. V. Sandusky, 99 111. App. 164; Louisville &c. R. Co. v. Moore, 150 Ky. 692, 150 S. W. 849; Weinhenmayer v. Bitner, 88 Md. 325, 42 Atl. 245, 45 L. R. A. 446 ; Aikin v. Weckerly, 19 Mich. 482; Gaffney v. St. Paul City R. Co., 81 Minn. 459, 84 N. W. 304; Hegberg v. St. Louis &c. R. Co., 164 Mo. App. 514, 147 S. W. 192; Hanson v. Kent &c. Paint Co. (Okla.), 129 Pac. 7; Allen v. Texas Trac. Co. (Tex. Civ. App), 149 S. W. 195; Patterson v. We- natchee Canning Co., S3 Wash. 155, 101 Pac. 721 ; Parkersburg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 253. Instructions properly re- fused which fail to contain any propo- sition of law. Knight v. State, 160 Ala. 58, 49 So. 764. The use of "etc." is condemned as rendering an instruction indefinite. Dallas Consol. Flee. St. R. Co. v. Chambers, 55 Tex. Civ. App. 331, 118 S. W. 851. The court should state propositions of law concisely and intelligibly so that the jury may understand their mean- ing without indulging in finely drawn out theories as to what law is appli- cable to the facts. State v. Marren, 17 Idaho 766, 107 Pac. 993, 134 Am. St. 286. "'Winn V. Walker, 145 111. App. iii ; Wilcke v. Henrotin, 146 111. App. 481 ; Ruddell v. Baltimore &c. R. Co., 91 FORM AND ARRANGEMENT. § 63 Thus where the court says, "I charge you that, after hearing the evidence, it is for you to say whether the charges are reason- able or not," the language is not plain, as it may be understood by the jury to refer to the court's charges, whereas another mean- ing was in fact intended, and the instruction, therefore, is sub- ject to criticism.^ ^ So where an instruction makes use of the expression, "in a case like this," the jury may infer that it means the case at bar, when it was in fact intended to refer to a class of cases to which the plaintiff's action belonged.^* So also where an instruction makes reference to another instruction, it should do so in a distinct and definite manner so as to leave no dotibt as to which one was intended.^^ But where instructions are given in response to the jury's request, the mere fact that they are unnecessarily long will not make them objectionable,^ ° and where there is more than one plaintiff in an action, it is not nec- essarily misleading to make use of the word "plaintiff" in an instruction.^^ Mere verbiage without more does not ordinarily render an instruction erroneous.'* (2) An instruction should embody a concise and perspicuous statement of the cause of action and the issues.'^ Instructions therefore should show the jury just what the is- sues are,*" taking care not to misstate them,*^ and to submit only such issues as are formed by the pleadings.*^ In so doing, the court may state the facts hypothetically, instructing that the verdict should be of a certain designated character if the facts * 152 111. App. 218; Show v. Alton &c. 195, 78 Pac. 215, 107 Am. St. 416. Trac. Co., 152 111. App. 552. The court properly refused an in- '" Fuller V. Stevens (Ala.), 39 So. struction consisting of a string of 623. words, without punctuation, intelli- '"Fitts V. Southern Pac. Co., 149 gible or unintelligible, according as Cal. 310, 86 Pac. 710, 117 Am. St. one may happen to read it, requiring 130. division into two distinct sentences "Drumm-Flato Commission Co. v. to make it intelligible. Bailey v. Gerlack Bank, 92 Mo. App. 326. State, 168 Ala. 4, 53 So. 296. '"Renner v. Thornburg, 111 Iowa " McCord v. Whitacre, 8 Pa. Super. 515. 82 N. W. 950. Ct. 277. "Citizens' Gas &c. Co. v. Whip- "Chicago &c. R. Co. v. Clinebell pie, 32 Ind. App. 203, 69 N. E. 557. (Nebr.), 99 N. W. 839. '' Fourche River Val. &c. R. Co. v. '" Chicago &c. R. Co. v. Clinebell Tippett, 101 Ark. 376, 142 S. W. 520. (Nebr.), 99 N. W. 839. "Paxton V. Woodward, 31 Mont. § 63 INSTRUCTIONS RULES. 92 are found to be true/^ And it is not improper to give a history of the litigation leading up to the case at bar, predicating it upon the pleadings and the uncontradicted evidence, and making men- tion of it only so far as may be necessary in order to enable the jury to understand the issues.** But an instruction is inadequate which tells the jury that under certain named circumstances the plaintiff can not recover, virhere such circumstances constitute only a portion of the issues.*^ (3) If the charge, as delivered by the court, is substantially correct and presents the issues fairly to the jury, it will be suf- ficient.** It is not necessary that instructions should be drawn with such technical accuracy as to be free from hypercritical objections, provided the jury can correctly understand therefrom the rules of law applicable to the case.*' Thus where an instruction is correct, although it might be extended so as to include other matters, the fact that it does not embrace such other matters will not create error. If an additional instruction is desired, it should be requested.*^ And where a charge covers the entire ^ Jones V. Hathaway, 11 Ind. 14. of the evidence" in every instruction. *" Conley v. Redwine. 109 Ga. 640, Gary v. Niblo, ISS 111. App. 338. Not 35 S. E. 92, n Am. St. 398. error to refer to a witness as a " Gaven v, Bodwell Granite Go., 99 "claim agent" where he testified that Maine 278, 59 Atl. 285. he was a law agent having the duties ■" Fessenden v. Doane, 188 111. 228, of a claim agent. Southern R. Go. v. 58 N. E. 974; Golee v. Stats, 75 Ind. Hazlewood, 45 Ind. App. 478, 90 N. 511; Wilson v. Trafalgar &c. Gravel E. 18. The length of an instruction Road Go., 93 Ind. 287; Garman v. will not justify a reversal unless it Gentral R. Go., 195 Pa. St. 440, 46 contains otjectionable features which Atl. 71. constitute reversible error. State v. "Weant v. Southern Trust &c. Go., Steele, 226 Mo. 583, 126 S. W. 406. 112 Md. 463, n Atl. 289 (mere verbal The use of the word "result" instead inaccuracy not fatal) ; Torreyson v. of "cause" in referring to proximate United R. Go., 144 Mo. App. 626, 129 cause does not render an instruction S. W. 40; Joyner v. Atlantic Goast erroneous, since if the injury must Line R. Go., 91 S. Gar. 104, 74 S. E. be the proximate result of negligence 825. Mere inaptness of statement is then the negligence was the proxi- not fatal if the instructions are sub- mate cause of the injury. Sloss-Shef- stantially correct. St. Louis &c. R. field Steel &c. Go. v. Stewart, 172 Go. v. McWhirter, 145 Ky. 427, 140 S. Ala. 516, 55 So. 785. W. dll. It is not necessary to re- * Wilson v. Trafalgar &c. Gravel peat the words "by the preponderance Road Co., 93 Ind. 287. An instruc- 93 FORM AND ARRANGEMENT. § 64 declaration, without discrimination, no demurrer having been in- terposed as to any count, and the proof corresponding substan- tially to the allegations, it is not objectionable.*® But an instruc- tion will be faulty which tells the jury that, in order that a tax deed may be valid, it must be shown that the "requirements of the law have been complied with" and "all conditions precedent" obsen^gd, and no information is given as to what such require- ments and conditions precedent are.°" § 64. Repetition of instructions. Where the subject-matter is fully covered in other instruc- tions the court should refuse to repeat it. Tautology only serves to place undue stress on the repeated matter and this tends to mislead or confuse the jury.°^ But the mere fact of repetition does not generally amount to reversible error tion correct as far as it goes is not erstein, 115 Md. 678, 81 Atl. 695; Per- erroneous merely because it is not rette v. Kansas City, 162 Mo. 238, 62 more complete. Bissop v. State, 53 S. W. 448; Pecha v. Kastl, 64 Nebr. Ind. 408. 380, 89 N. W. 1047; Gordon v. Sea- " Fowler v. Gilbert, 38 Mich. 292, board Air Line R. Co., 132 N. Car. 31 Am. Rep. 316. 565, 44 S. E. 25; Beadle v. Paine, 46 "Wood V. Chapman, 24 Colo. 134, Ore. 424, 80 Pac. 903; Sizemore v. St. 49 Pac. 136. Louis &c. R. Co. (Tex. Civ. App), "Furlow V. United Oil Mills, 104 130 S. W. 1024 (contributory negli- Ark. 489, 149 S. W. 69, 45 L. R. A. gence) ; Continental Oil &c. Co. v. (N. S.) 372; Mernin v. Cory, 145 Thompson (Tex. Civ. App.), 136 S. Cal. 573, 79 Pac. 174; Colorado W. 1178 (measure of damages) ; State Springs Rapid Trans. Co. v. Al- v. Haley (Tex. Civ. App.), 142 S. W. brecht, 22 Colo. App. 201, 123 Pac. 1003 (burden of proof) ; Maibaum v. 957; Stedraanv. O'Neil, 82 Conn. 199, Bee Candy Mfg. Co. (Tex. Civ. 72 Atl. 923, 22 L. R. A. (N. S.) 1229 App.), 145 S. W. 313 (burden of (burden of proof) ; Chicago City R. proof) ; Smith v. Columbus Buggy Co. V. Roach, 76 111. App. 496; Dwyer Co. (Utah), 123 Pac. 580; Greever v. V. Chicago City R. Co., 153 111. App. Bank of Graham, 99 Va. 547, 39 S. E. 463; Baum v. Palmer, 165 Ind. 513, 159; Alft v. Clintonville, 126 Wis. 76 N. E. 108, 3 L. R. A. (N. S.) 153; 334, 105 N. W. 561. Where a party Modern Woodmen v. Kincheloe, 175 asks more than one charge on the Ind. 563, 94 N. E. 228, Ann. Cas. 1913 same subject and the court selects C 1259; Lillie v. Brotherhood of and gives one of them, he can not Railway Trainmen, 114 Iowa 252, 86 complain of the refusal of the others. N. W. 279; Proctor Coal Co. v. Bea- Greenville v. Branch (Tex. Civ. ver, 151 Ky. 839, 152 S. W. 965; Tros- App.),- 152 S. W. 478. Where there per Coal Co. v. Crawford, 152 Ky. are two phases of a defense and the 214, 153 S. W. 211; Goodman v. Sap- jury are fully advised thereon in one § 64 INSTRUCTIONS RULES. 94 where the instruction is correct in principle, unless prejudice is shown to have resulted therefrom." Where, for example, the court, at the commencement of a charge, outlines the material averments of the complaint, to- gether with the admissions and denials of the answer, and in- structs that a preponderance of the evidence is necessary for the establishment of such averments, it is sufficient afterward to refer generally to such averments, instead of specifically restating them.^^ Repetition has been held not involved in a charge one paragraph of which declared the law applicable to the case, an- other submitted the facts for recovery applicable to the declara- tion and another stated the negative hypothesis thereof in de- fendant's favor.°* But a converse statement is not always re- garded as a repetition.°° It has been held not an erroneous repe- tition for the court to charge abstractly upon defendant's theory of defense and then give a special charge presenting the rule of law in connection with the concrete facts. °® But repetition is not generally held to constitute reversible error. Thus the mere fact that a legal point bearing on the case was fully explained to the jury will not make its repetition elsewhere, though unnecessary, instruction, it is unnecessary, in a App.), 73 S. W. 849; Pettithory v. subsequent instruction, to repeat what Clark (Tex. Civ. App.), 139 S. W. has been previously said as to either 989; Klipstein v. Raschein, 117 Wis. phase. Greever v. Bank of Graham, 248, 94 N. W. 63. 99 Va. 547, 39 S. E. 159. "= Scott v. Provo City, 14 Utah 31, '"' Lintz v. Denver City Tramway 45 Pac. 1005. Where, in an action for Co., 54 Colo. 371, 131 Pac. 258; Wil- malpractice, the court instructs that son V. Barnard, 10 Ga. App. 98, 72 the degree of skill required of a S. E. 943; McMahon v. Chicago City specialist in surgery is such as is R. Co., 143 111. App. 608; Roman v. possessed by the average members of Silbertrust, 159 111. App. 485; Egg- the profession practicing as special- man V. Nutter, 169 111. App. 116; ists in similar localities, due regard Lecklieder v. Chicago City R. Co., being paid to the advanced state of 172 111. App. 557; Mahar v. Steuer, medical science at the time, there is 170 Mass. 454, 49 N. E. 741, 64 Am. no necessity for repeating this state- St. 315; Jacobsen v. Minneapolis, 115 ment in another instruction. Beadle Minn. 397, 132 N. W. 341 ; Denise v. v. Paine, 46 Ore. 424, 80 Pac. 903. Omaha, 49 Nebr. 750, 69 N. W. 119; "Beaumont &c. R. Co. v. Olmstead, Smart v. Masters and Wardens, 27 56 Tex. Civ. App. 96, 120 S. W. 596. Ohio Cir. Ct. R. 273; Keys v. Winns- "Continental Casualty Co. v. Deeg boro Granite Co., 72 S. Car. 97, 51 (Tex. Civ. App.), 125 S. W. 353. S. E. 549, 110 Am. St. 592; Van ™ Jones v. Missouri &c. R. Co. Boeckmann v. Loepp (Tex. Civ. (Tex. Civ. App.), 157 S. W. 213. 95 FORM AND ARRANGEMENT. a valid ground of exception."' And where the court instructs the jury that they may find punitive damages under certain cir- cumstances, but omits one feature, namely, that such damages may be awarded where gross negligence is shown, it is no ob- jection that attention is called to this omitted feature and the jury again instructed as to punitive damages, with reference thereto."* Where the instruction directs the jury that they must determine the issues from the evidence on the question, it is not necessary to further instruct that they must determine each separate issue according to the evidence."" § 65. Repetition of instructions in criminal cases. In like manner instructions in criminal cases are considered together and it is not necessary for the court in instructing the jury as to the crime or some particular phase of it to re- peat the instruction or to reiterate all the qualifying circum- stances previously explained to the jury f but repetition will not work a reversal unless it misleads the jury.°^ "Mahar v. Steuer, 170 Mass. 454, 49 N. E. 741, 64 Am. St. 315. "Nashville St. R. Co. v. O'Bryan, 104 Tenn. 28, 55 S. W. 300. "Vandalia Coal Co. v. Yemm, 175 Ind. 524, 92 N. E. 49. "Thrasher v. State, 168 Ala. 130, 53 So. 256; People v. Stevens, 15 Cal. App. 294, 114 Pac. 800; People v. White, 20 Cal. App. 156, 128 Pac. 417; State v. Kritchman, 84 Conn. 152, 79 Atl. 75; State v. Weiner, 84 Conn. 411, 80 Atl. 198; Hall v. State, 7 Ga. App. 186, 66 S. E. 486; Watts V. State, 9 Ga. App. 500, 71 S. E. 766; Sullivan v. People, 108 111. App. 328; Kennedy v. State, 107 Ind. 144, 6 N. E. 305, 57 Am. Rep. 99; Thrawley v. State, 153 Ind. 375, 55 N. E. 95; State v. Buffington, 71 Kans. 804, 81 Pac. 465, 4 L. R. A. (N. S.) 154; State v. Darragh, 152 Mo. 522, 54 S. W. 226; Cauthern v. State (Tex. Cr. App.), 65 S. W. 96; Lee v. State, 44 Tex. Cr. 460, 72 S. W. 194; Comegys v. State, 62 Tex. Cr. 231, 137 S. W. 349; State V. Prater, 52 W. Va. 132, 43 S. E. 230; State v. Dodds, 54 W. Va. 289, 46 S. E. 228; State v. Legg, 59 W. Va. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152. In giving the jury the form of a verdict the court need not repeat the instruction that the verdict should be based on the jury's opinion of the evidence. Brundage v. State, 7 Ga. App. 726, 67 S. E. 1051. Where the law as to insanity has been fully charged the court is not bound to qualify paragraphs dealing with murder in the first and second degrees by referring to the charge on insan- ity. Montgomery v. State (Tex. Cr. App.), 151 S. W. 813. Where jury is instructed that in murder the kill- ing must have been done with malice aforethought and premeditation, it is not necessary to repeat those elements of the crime in each paragraph of the charge. Brewer v. State, 72 Ark. 145, 78 S. W. 773, 105 Am. St. 21. "'People V. Cotton, 250 111. 338, 95 N. E. 283; People v. Lewis, 252 111. § 66 INSTRUCTIONS RULES. 96 A great number of additional instructions on the subject are open to the objection that they are liable to lead the jury to be- lieve that the court is in doubt as to the guilt of the accused."^ A charge on reasonable doubt once made need not be repeated for it is sufficient to charge as to reasonable doubt on the whole case f^ neither is the court required to repeat in every instruction the degree of proof required when the jury has been properly in- structed that the state must make out its whole case beyond a reasonable doubt.^* Where words have been once properly de- fined they need not be again defined in each instruction in which they are used.°° § 66. Limitation on number of instructions. Instructions greatly disproportionate to the issues involved tend to confuse the jury and it is not an abuse of the discre- tion of the court to place a reasonable limit on the number of instructions he will consider in behalf of either party.^' The practice of loading down a case with a great number of instructions is especially to be condemned where the issues in- volved are few and simple."^ The giving of a large number of 281, 96 N. E. 1005; Robinson v. State, 90 S. W. 725; Dunn v. State, 58 Nebr. 71 Nebr. 142, 98 N. W. 694. 807, 79 N. W. 719; Brown v. State, 62 ■" State V. Ferrell, 246 Mo. 322, 152 N. J. L. 666, 42 Atl. 811 ; State v. S. W. 33. Currie, 8 N. Dak. 545, 80 N. W. 475; °' State V. Fox, 10 Kans. App. 578, Price v. State, 44 Tex. Cr. 304, 70 S. 62 Pac. 727; State v. Robinson, 236 W. 966, 100 Am. St. 855. Mo. 712, 139 S. W. 140; State v. Law- °' State v. Dipley, 242 Mo. 461, 147 son, 239 Mo. 591, 145 S. W. 92; State S. W. 111. V. Washington, 242 Mo. 401, 146 S. ™In re Keithley's Estate, 134 Cal. W. 1164; Johnson v. State (Tex. Cr. 9, 66 Pac. 5; Canon v. Grigsby, 116 App.), 67 S. W. 412. 111. 151, 5 N. E. 362, 56 Am. Rep. "People V. Waysman, 1 Cal. App. 769; Chicago &c. R. Co. v. Kelly, 25 246, 81 Pac. 1087; Sylvester v. State, 111. App. 17; Casey v. J. W. Reedy 46 Fla. 116, 35 So. 142; Williams v. Elev. Co., 166 111. App. 595; Blanton State, 125 Ga. 265, 54 S. E. 167; Dela- v. Dold, 109 Mo. 64, 18 S. W. 1149, 32 hoyde v. People, 212 111. 554, 72 N. E. Am. St. 648; But see Bartz v. Chi- 732; State v. Crouch, 130 Iowa 478, cago City R. Co., 116 111. App. 554; 107 N. W. 173; State v. Ryno, 68 McCaleb v. Smith, 22 Iowa 242; Nay- Kans. 348, 74 Pac. 1114, 64 L. R. A. lor v. Chinn, 82 Mo. App. 160. 303; Powers v. Commonwealth, 110 "Desberger v. Harrington, 28 Mo. Ky. 386, 61 S. W. 735, 53 L. R. A. App. 632; Hannibal v. Richards, 35 245 ; State v. Strickland, 191 Mo. 616, Mo. App. IS (12 instructions on a 97 FORM AND ARRANGEMENT. §6; instructions is likely to impress the jury with the belief that the court is instructing strongly in favor of a party at whose instance they are given/* § 67. Reference to pleadings for issues. The court should inform the jury what issues have been raised by the pleadings and not leave the jury to determine the question by reference to the pleadings."" But this prac- tice is permitted in some jurisdictions,'' " and in others is not considered fatal where the pleadings state a cause of action and no prejudice is shown to have resulted.^ ^ The charge should contain an exposition of the principles on which the liability of the parties depend and the court should not confuse the jury by directing them to ascertain the issues single issue) ; McAllister v. Barnes, 3S Mo. App. 668 (11 instructions — issues few and simple) ; Doan v. St. Louis &c. R. Co., 43 Mo. App. 424 (23 instructions excessive). The •court should give as few instructions as possible provided they cover every feature of the case. State v. Toma- sitz, 144 Mo. 86, 45 S. W. 1106. ""Bartholomew v. Illinois Val. R. Co., 1S4 111. App. S12. ™Lewy Art Co. v. Agricola, 169 Ala. 60, 53 So. 145; Schlander v. Chicago &c. Trac. Co., 253 111. 154, 97 N. E. 233; Rosinski v. Burton, 163 111. App. 162 ; Latham v. Cleveland &c. R. Co., 164 III. App. 559; Wilks v. St. Louis &<;. R. Co., 159 Mo. App. 711, 141 S. W- 910; Sinnamon v. Moore, 161 Mo. App. 168, 142 S. W. 494; Birch Tree State Bank v. Dew- ier, 163 Mo. App. 65, 145 S. W. 843; Bean v. Lucht, 165 Mo. App. 173, 145 S. W. 1171; Larson v. Chicago, &c. R. Co., 89 Nebr. 247, 131 N. W.'201; Southern Badge Co. v. Smith (Tex. Civ. App.), 141 S. W. 185. An in- struction authorizing a recovery if the ■plaintiff was injured "in the manner .set out in the declaration" is improper 7 — Branson's Inst. as tending to mislead. Southern R. Co. V. Ganong, 99 Miss. 540, 55 So. 355. Instructions should hypothesize the facts relied on as a defense and not require the jury to examine the pleas to determine what is meant by the instructions. Birmingham R. &c. Co. v. Fox, 174 Ala. 657, 56 So. 1013. "■Jones V. McElroy, 134 Ga. 857, 18 S. E. 729, 137 Am. St. 276. A charge which states the issues in sub- stantial conformity to the pleadings and refers the jury to the petition for a full statement of the cause of ac- tion is sufficient. Missouri &c. R. Co. v. Gilbert (Tex. Civ. App.), 131 S. W. 1145. An instruction properly stating the law applicable to the facts which plaintiff has pleaded and proved need not state to which count of the dec- laration it is applicable, in the absence of a circumstance rendering it nec- essary. Adamson v. Norfolk &c. Trac. Co., Ill Va. 556, 69 S. E. lOSS. "Waschow V. Kelly Coal Co., 245 111. 516, 92 N. E. 303. Unless the complaint contains all the elements necessary for a recovery, the court should not instruct that if the piain- tiff has made out his case as s^t out § 67 INSTRUCTIONS RULES. 98 from the pleadings. '° Unless, therefore, there is only one issue, and this is tersely stated in the pleadings so that it may be readily comprehended, it is error to read the pleadings, with the instruc- tion that such pleadings "make up the issue, from which you must determine the controversy between the parties."^^ Where the instruction purports to state material allegations which plain- tiff must prove to entitle him to recover it should embody every material fact essential to a recovery.''* But an instruction which properly submits an issue need not include all the other material issues submitted by other instructions.'^ The practice of reading pleadings to the jury is not commended.'" It may be said, how- ever, that where the court, in reading from the pleadings, cor- rectly states the issues raised, there can be no objection.'' The rule is the same where the trial judge allows the jury to read the pleadings in their room, after having fully explained the issues.'* The court may be justified in calling attention to the allegations of a petition where the defendant has failed to challenge their legal sufficiency by interposing a demurrer.'® The practice of stating the issues by copying the pleadings in the instructions is not commended, but this will not ordinarily work a reversal un- less it has resulted in prejudice to a party.*" It is the better prac- in the complaint by a preponderance "Anderson v. Crow (Tex. Civ. of the evidence they should find for App.), 151 S. W. 1080. the plaintiff. Cromer v. Borders Coal ™ Savino v. Griffin Wheel Co., 118 Co., 246 111. 451, 92 N. E. 926. An in- Minn. 290, 136 N. W. 876. struction will not cause a reversal "Union Gold Min. Co. v. Craw- merely because it refers to a count of ford, 29 Colo. 511, 69 Pac. 600. a declaration which does not state a '"Franklin v. Atlanta &c. Air Line cause of action if there is another R. Co., 74 S. Car. 332, 54 S. E. 578. count contained in such declaration "Macon Consolidated St. R. Co. which does state a cause of action v. Barnes, 113 Ga. 212, 38 S. E. 756, and will support a recovery. Ruch v. 84 Am. St. 233. Aurora &c. R. Co., ISO 111". App. 329. '"Angola R. &c. Co. v. Butz (Ind. "Forszen v. Hurd, 20 N. Dak. 42, App.), 98 N. E. 818; McDonald v. 126 N. W. 224; Baltimore &c. R. Co. Bice, 113 Iowa 44, 84 N. W. 985; Can- V. Lockwood, 72 Ohio St. 586, 74 N. field v. Chicago &c. R. Co., 142 Iowa E. 1071. 658, 121 N. W. 186; Black v. Miller '"Baltimore &c. R. Co. v. Lock- (Iowa), 138 N. W. 535; Kansas City wood, 72 Ohio St. 586, 74 N. E. 1071. &c. R. Co. v. Dalton, 66 Kans. 799, 72 "Bragg V. Eagan (Ind. App.), 98 Pac. 209; Tobler v. Union Stock- N. E. 835. yards Co., 85 Nebr. 413, 123 N. W. 99 FORM AND ARRANGKMENT. 68 tice, however, to instruct as to the substance of the issues, not- withstanding that, in contemplation of law, the pleadings in a cause are always before the jury.*^ Issues not specially set out are withdrawn and it is not necessary for the court to formally withdraw them/^ § 68. Reading from statutes. Where the case is based lapon a statute, which is clear and free from ambiguity, it will be wholly propei*to read from it or quote it either in civil cases*^ or criminal prosecutions.^* Thus where the entire question of a defendant's duty with reference to the safe ventilation of a mine is regulated by a stat- ute which provides for the ventilation of mines by a certain pre- scribed method and in a certain way, it is incumbent upon the trial judge to read the statute, and it has been held that it does not devolve upon him to give an additional instruction on this 461. Where the complaint states a good cause of action and its suiB- ciency is not questioned, an instruc- tion is not open to objection which sets out the allegations of the com- plaint in detail and states that the answer is a general denial and that these form the issues and that under the issues thus formed, the plaintiff to recover must prove by a fair pre- ponderance of the evidence all of the material elements of the complaint. New V. Jackson, 50 Ind. App. 120, 95 N. E. 328. "Blair-Baker Horse Co. v. First Nat. Bank, 164 Ind. 77, 72 N. E. 1027. " Latman v. Douglas, 149 Iowa 699, 127 N. W. 661. " Florida R. Co. v. Dorsey, 59 Fla. 260, 52 So. 963; Wells v. Baltimore &c. R. Co., 1S3 111. App. 23 ; Vetrovec V. Meyers, 158 III. App. 891; Adams V. Jurich, 160 111. App. 522; Eaton v. Marion County Coal Co., 173 111. App. 444. Not error to give a sec- tion of the code in its exact language, although it has been construed some- what different from the popular ac- ception of the terms employed, if it is thereafter fully explained in ac- cordance with such construction. Western Union Tel. Co. v. Harris, 6 Ga. App. 260, 64 S. E. 1123. '^Frazier v. State, 159 Ala. 1, 49 So. 245; Mitchell v. State, 73 Ark. 291, 83 S. W. 1050; Van Valkinburgh V. State, 102 Ark. 16, 142 S. W. 843 ; Pennewell v. State, 105 Ark. 32, 150 S. W. 114; People v. Bernard (Cal. App.), 130 Pac. 1063; Pitts v. State, 114 Ga. 35, 39 S. E. 873; Common- wealth V. Burns, 167 Mass. 374, 45 N. E. 755; State v. Powell, 66 Mo. App. 598; People v. Scanlon, 132 App. Div. 528, 117 N. Y. S. 57; Gen- try V. State, 61 Tex. Cr. 619, 136 S. W. 50. It is not absolutely required that an instruction on the trial of a defendant for a statutory offense should follow the language of the statute providing the meaning and substance of the statute is given. Wat- son v. Commonwealth, IS Ky. L, 360, 23 S. W. 666. § 69 INSTRUCTIONS RULES. lOO subject.^" So also in an action for assault and battery, the plain- tiff claiming punitive damages, the trial judge may read a sec- tion of the code providing that additional damages may be awarded as "compensation for the wounded feelings of the plaintiff."*" It is error, however to incorporate in the instruc- tions a section of the statutes, where the section contains subjects not in issue nor proper to be presented to the jury.*' And where it is a question of fact in a case as to whether the plaintiff may be called a fellow-servant, it is error to read the statute bearing on the subject, where the statute is susceptible of more than one construction and where it is not applicable, in its entirety, to the facts, for it is the duty of the court, rather than of the jury, to interpret the statutes.** Neither may the court refer the jury to the statutes, for this would require the jury to take the statutes to their room and there find the particular statute and read and construe it.*' § 69. Quotations from decisions. The court may incorporate in the charge a quotation from an opinion of a higher court which lays down a correct rule of law and the principle applies to the facts in the case at bar."" Accordingly an exception will not lie to the action of the trial court in reading an extract from an opinion in an adjudicated case where the law is correctly stated and the opinion illustrates "^ Sommer v. Carbon Hill Coal Co., "* Kansas City &c. R. Co. v. Becker, 107 Fed. 230, 52 L. R. A. SOS. So 63 Ark. 477, 39 S. W. 358. where an action is brought under a ™ Butler v. Gill, 34 Okla. 814, 127 state mining act for a wrongful Pac. 439. death, being based upon the defend- '"' Post v. Leland, 184 Mass. 601, 69 ant's alleged failure to provide suit- N. E. 361 ; People v. Niles, 44 Mich. able props, caps and timber, an in- 606, 7 N. W. 192; Power v. Harlow, struction referring thereto and mak- 57 Mich. 107, 23 N. W. 606. In a ing use of the language of the stat- prosecution for homicide it is not er- ute is rightly given. Consolidated ror in Alabama for the court to state Coal Co. V. Dombroski, 106 111. App. facts in a former case showing that 641. no particular time is required for "McNatt V. McRae, 117 Ga. 898, premeditation or deliberation. Mc- 45S. E.248. Guffin v. State (Ala.), 59 So. 635. " Henkel v. Bondreau, 88 Nebr. 784, Courts ought to adhere to charges 130 N. W. 753. that have received the approval of lOI FORM AND ARRANGEMENT, one phase of the case at bar." So the trial court m a criminal case may read and make part of its charge extracts from the opinion of the Court of Appeals on the question of premeditation, deliberation, and criminal intent, where they correctly state well- recognized principles and define with accuracy the rules appli- cable to those questions in the case at bar.°^ But the fact that an instruction was taken verbatim from an opinion of the Supreme Court does not make it proper where the language is used in the discussion of an entirely different question.^^ Again, it is to be remembered that the language of the appellate tribunal frequently is argumentative and where this is the case the quotation is inap- propriate for an instruction.'* It is improper practice to cite authorities on the margin of an instruction.'" § 70. Misleading instructions. The purpose of an instruction is to aid and enlighten the jury and this object is defeated by instructions which mislead or confuse the jury.'* the Supreme Court and not attempt definitions which add nothing to the meaning of well understood terms. State V. Nerzinger, 220 Mo. 36, 119 S. W. 379. " Post V. Leland, 184 Mass. 601, 69 N. E. 361. It has been held not to constitute error where the trial judge, in giving a definition of a term oe- culiar to the law, quotes from the Supreme Court of the state or from a recognized text-writer. Bronneh- burg V. Charman, 80 Ind. 475. ''People V. Breen, 181 N. Y. 493, 74 N. E. 483. See also State v. Chiles, SS S. Car. 47, 36 S. E. 496. "" Jones V. F. S. Royster Guano Co., 6 Ga. App. S06, 65 S. E. 361. °* Atlanta &c. R. Co. v. Hudson, 123 Ga. 108, 51 S. E. 29. Discussions in Supreme Court decisions should not be incorporated in the instructions. Davis V. Hearst, 160 Cal. 143, 116 Pac. 530. °= Stale V. Sage, 22 Idaho 489, 126 Pac. 403; Springer v. Orr, 82 111. App. 558. ""Pulaski Min. Co. v. Hogan, 196 Fed. 724; Sullivan v. State, 117 Ala. 214, 23 So. 678; Birmingham Paint &c. Co. V. Gillespie, 163 Ala. 408, 50 So. 1032; Southern R. Co. v. Smith, 173 Ala. 697, SS So. 913; Estrella Vineyard Co. v. Butler, 125 Cal. 232, 57 Pac. 980; Jacksonville Elec. Co. V. Adams, 50 Fla. 429, 39 So, 183, 2 L. R. A. (N. S.) 512, 111 Am. St. 121; Illinois Cent. R. Co. v. Becker, 119 111. App. 221 ; Alexander v. Donk Bros. Coal &c. Co., 149 111. App. 378; Farley v. Wabash R. Co., 153 III. App. 493; Shilling v. Braniff, 25 Ind. App. 676, 58 N. E. 855; State v. In- gram, 16 Kans. 14; Missouri Pac. R. Co. V. Irvin, 81 Kans. 649, 106 Pac. 1063, 26 L. R. A. (N. S.) 739; Gam- brill V. Schooley, 95 Md. 260, 52 Atl. 500, 63 L. R. A. 427; Dixon v. New England R. Co., 179 Mass. 242. 60 N. E. 581; Schoenberg v. Voigt, 36 §7o INSTRUCTIONS RULES. 1 02 The rule is violated by an instruction which is involved,^' or so verbose as to cause the jury to lose the train of thought;'^ or where it states conflicting propositions of law f^ or where it re- fers to a contingency, but omits to say what the contingency is ;^ or where it gives several definitions of the offense for which ac- cused is being tried ;^ or contains several independent conditions or propositions, any one of which, if true, would have compelled a verdict for the defendant, whereas only one is covered by the predicated statement of facts.^ It is possible for an instruction to be abstractly correct and yet be susceptible of a misleading in- terpretation. Hence if, under such circumstances, it is not modi- fied in such a manner as to be clear, it should be refused.* Where the instruction is not misleading to an intelligent jury, it is not material that it is not expressed in the most precise and elegant English.^ Whether an instruction is misleading depends on how Mich. 310; Price v. Breckenridge, 92 Mo. 378, S S. W. 20 ; Faulkner v. Gil- bert, 61 Nebr. 602, 85 N. W. 843, 62 Nebr. 126, 86 N. W. 1074; Bragaw v. Supreme Lodge, 124 N. Car. 154, 32 S. E. 544; Friedman v. Weisz, 8 Okla. 392, 58 Pac. 613; Galveston Sec. R. Co. V. Eaten (Tex. Civ. App.), 44 S. W. 562; Ragland v. Butler, 18 Grat. (Va.) 323; State v. Cain, 20 W. Va. 679; State v. Sutfin, 22 W. Va. 771; Ward V. Brown, 53 W. Va. 227, 44 S. E. 488; State v. Davis, 58 W. Va. 94, 51 S. E. 230; Walker v. Stros- nider, 67 W. Va. 39, 67 S. E. 1087; Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310. " Ragland v. State, 125 Ala. 12, 27 So. 983; Simmons v. State, 145 Ala. 61, 40 So. 660; Turner v. State, 160 Ala. 40, 49 So. 828; Penry v. Dozier, 161 Ala. 292, 49 So. 909; Phillips v. State, 162 Ala. 14, 50 So. 194; Mar- tin V. State, 2 Ala. App. 175, 56 So. 64; Faulk v. State, 4 Ala. App. 177, 59 So. 225 ; Southern R. Co. v. Hob- son, 4 Ala. App. 408, 58 So. 751; Bass v. State, 58 Fla. 1, 50 So. 531 ; Friedman v. Weisz, 8 Okla. 392, 58 Pac. 613; Barbee v. State, 58 Tex. Cr. 129, 124 S. W. 961; State v. Greer, 22 W. Va. 800, 46 Am. Rep. 550. An instruction is erroneous where so worded as to be difficult to understand and to admit reasonably of a construction that would mislead the jury on a material point. Buel V. State, 104 Wis. 132, 80 N. W. 78. "'Scott v. Parlin &c. Co., 146 III. App. 92; Williams v. Ransom, 234 Mo. 55, 136 S. W. 349; Stid v. Mis- souri Pac. R. Co., 236 Mo. 382, 139 S. W. 172. "" Bryant v. Modern Woodmen, 86 Nebr. 372, 125 N. W. 621, 27 L. R. A. (N. S.) 326. ' Gambrill v. Schooley, 95 Md. 260, 52 Atl. 500, 63 L. R. A. 427. •People V. Monahan, 59 Cal. 389. 'Jacksonville Elec. Co. v. Adams, 50 Fla. 429, 39 So. 183, 2 L. R. A. (N. S.) 512, 111 Am. St. 121. * People V. Arnold, 20 Cal. App. 35, 127 Pac. 1060; Gray v. Chicago &c. R. Co. (Iowa), 139 N. W. 934; State V. Ingram, 16 Kans. 14. "Hauss V. Niblack, 80 Ind. 407; Tiggerman v. Butte, 44 Mont. 138, 119 103 FORM AND ARRANGEMENT. §71 and in what sense, under the evidence and the circumstances of the trial, ordinary men would understand it.° An instruction was held not misleading which told the jury that they should find there was no contributory negligence if there was no evidence thereon, or it was evenly balanced, and if there was no evidence of a balance or a preponderance against negligence of defendant, they should find him not guilty of negligence.'' § 71. Contradictory instructions. There is a violation of the principle against misleading in- structions where the court gives contradictory instructions on a material issue.^ It is the duty of the court to present the law applicable to the case, rather than to embarrass by giving conflicting charges and Pac. 477. It is not demanded that the instruction be expressed in the most simple and direct language, but it is enough if the court gives such in- structions as are readily understood and are not likely to mislead the or- dinary mind. Carson v. Old Nat. Bank, Zl Wash. 279, 79 Pac. 927. "Georgia Southern &c. R. Co. v. Hamilton Lumber Co., Hi Fla. ISO, 58 So. 838; Young v. Fairfield, 173 111. App. 311. "The test of the cor- rectness of instructions lies not in the indulgence of that close analysis which the lawyer in the seclusion of his office and with the aid of his books and the trial or appellate courts, with the benefit of briefs and arguments of learned counsel before them, give to the instructions, but as to how those instructions will nat- urally be understood by the average men who compose our juries, on whose judgment on the facts the courts must act. When instructions are so involved as to cloud the real issue and require careful, critical ex- amination on the part of the trial and of the appellate courts to deter- mine exactly what they mean or to determine what inference can be drawn from them^ the very object of instructing a jury is defeated." Knapp V. Hanley, 153 Mo. App. 169, 132 S. W. 747. 'Wellington v. Reynolds, 177 Ind. 49, 91 N. E. 155. 'Carter v. Fulgham, 134 Ala. 238, 32 So. 684; Rector v. Robins, 74 Ark. 437, 86 S. W. 667; St. Louis &c. Co. V. Hudson, 95 Ark. 506, 130 S. W. 534; Chicago Mill &c. Co. v. John- son, 104 Ark. 67, 147 S. W. 86; Bank of Stockton V. Bliven, 53 Cal. 708; Tognazzini v. Freeman, 18 Cal. App. 468, 123 Pac. 540; Arnett v. Huggins, 18 Colo. App. 115, 70 Pac. 765; Es- cambia County &c. Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83; Farnsworth v. Tampa Elec. Co., 62 Fla. 166, 57 So. 233 ; Wood v. Olson, 117 111. App. 128; Fowler v. Wallace, 131 Ind. 347, 31 N. E. 53, 15 L. R. A 792, 31 Am. St. 439; State v. Dud- ley, 45 Ind. App. 674, 91 N. E. 60S; Steele v. Michigan Buggy Co., SO Ind. App. 635, 95 N. E. 435 ; Kerr v. Top- ping, 109 Iowa ISO, 80 N. W. 321; §71 INSTRUCTIONS RULES. 104 leaving the jury to determine which instructions are correct,® for the effect of contradictory instructions must always be to con- fuse.^" The theory is that instructions when read together must fae harmonious." The principle is the same in criminal cases.^^ The rule is all the more important where the evidence is conflict- ing.^^ Instructions should be refused where they are so abso- lutely inconsistent upon the measure of damages that conformity with one necessarily implies a disregard of the other.^* And where the court instructs that the plaintiff is entitled, in any event, to recover damages for the tortious cutting of certain timber, and in a subsequent part of the charge leaves the jury to determine whether, under such circumstances, there can be any liabili'ty, the effect will be so to confuse the jury as to let in an Philadelphia &c. R. Co. v. Holden, 93 Md. 417, 49 Atl. 62S ; Canton Lum- ber Co. V. Liller, 112 Md. 2S8, Id Atl. 415; Lake Shore &c. R. Co. v. Miller, 25 Mich. 274; State v. Herrell, 97 Mo. 105, 10 S. W. 387, 10 Am. St. 289; Kelly v. United R. Co., 153 Mo. App. 114, 132 S. W. 269; Omaha St. R. Co. V. Boesen, 68 Nebr. 437, 94 N. W. 619; Edwards v. Atlantic Coast Line R. Co., 129 N. Car. 78, 39 S. E. 730; Payne v. McCormick Harvest- ing Mach. Co., 11 Okla. 318, 66 Pac. 287; Elk Tanning Co. v. Brennan, 203 Pa. 232, 52 Atl. 246; Warren v. Wilson, 89 S. Car. 420, 71 S. E. 818; Konold V. Rio Grande W. R. Co., 21 Utah 379, 60 Pac. 1021, 81 Am. St. 693; Johnson v. Central Vermont R. Co., 84 Vt. 486, 79 Atl. 1095; Win- chester V. Carroll, 99 Va. 727, 40 S. E. 37; McKelvey v. Chesapeake &c. R. Co., 35 W. Va. 500, 14 S. E. 261, 29 Am. St. 820. •Fowler v. Wallace, 131 Ind. 347, 31 N. E. 53, IS L. R. A. 792, 31 Am. St. 439. " Rector v. Robins, 74 Ark. 437, 86 S. W. 667 ; Bleiler v. Moore, 94 Wis. 385, 69 N. W. 164. "Wells V. State, 102 Ark. 627, 145 S. W. 531. "Gordon v. State, 147 Ala. 42, 41 So. 847; State v. Webb, 6 Idaho 428, 55 Pac. 892.; McDougal v. State, 88 Ind. 24; Blume v. State, 154 Ind. 343, 56 N. E. 771; State v. Fellers, 140 Mo. App. 725, 127 S. W. 95; State V. Peel, 23 Mont. 358, 59 Pac. 169, 75 Am. St. 529; State v. Blaine, 45 Mont. 482, 124 Pac. 516; State v. Cain, 20 W. Va. 679. The giving of an instruction inconsistent with a proper one is calculated to prevent the jury from giving due consideration to the evidence in the light of the cor- rect instruction. People v. Ross, 19 Cal. App. 469, 126 Pac. 375. An in- struction that the accused must es- tablish the defense of alibi offered pr must be convicted and an instruc- tion that if the' proof on the subject raises a reasonable doubt as to guilt, the accused must be acquitted are in irreconcilable conflict. Wells v. State, 102 Aric. 627, 145 S. W. 531. " Rector v. Robins, 74 Ark. 437, 86 S. W. 667. "Arnett v. Huggins, 18 Colo. App. 115,70 Pac. 765; Catanzaro di Giorgio Co. V. Stock, 116 Md. 58, 81 Atl. 267. 105 FORM AND ARRANGEMENT. § 72 erroneous verdict.'^ An instruction that blankets are not bag- gage is inconsistent with an instruction leaving it to the deter- mination of the jury whether they were baggage." The initial part of an instruction which told the jury that it was not negli- gence as a matter of law for a person to go upon a street car track without looking or listening, contradicted a concluding portion of the same instruction which stated that such persons must use due care and that ordinary care means that he must look and listen before going on the track, especially where the track is par- tially obstructed.^^ Instructions are not inconsistent where they merely assert alternative propositions on either of which a claim- ant may recover.^* Neither are instructions contradictory which make plain and definite certain matters stated indefinitely in prior instructions.^^ It is not a valid objection to a correct charge that it may contradict something else in the charge.^" § 72. Undue prominence to particular features. A jury may be misled by instructions which give undia^e prominence to some particular feature, phase or theory of a case and such instruction should not be given.^^ Where an instruction lays especial stress upon certain features of the case in such a way as to take the jury's attention from other phases upon which there might be a recovery, it should be "Elk Tanning Co. v. Brennan, 203 plicable to the facts of the case. Pa. 232, 52 Atl. 246. Bloomfield v. Finn, 84 Nebr. 472, 121 '» Pullman Co. v. Custer (Tex. Civ. N. W. 716. App.), 140 S. W. 847. "Gray v. Washington Power Co., "Roanoke &c. R. Co. v. Carroll, 30 Wash. 665, 71 Pac. 206. 112 Va. 598, 12 S. E. 125. =° Murray v. State, 56 Tex. Cr. 420, "Huff V. Simmers, 114 Md. 548, 120 S. W. 438. f9 Atl. 1003; Richmond v. Gentry, 111 ''Rutherford v. Dyer, 146 Ala. 665, Va. 160, 68 S. E. 274. There was no 40 So. 974; Western Union Tel. Co. inconsistency where the court in one v. Robbins, 3 Ala. App. 234, 56 So. instruction 'told the jury what the 879; Sullivan -v. Capital Trac. Co., 34 plaintiff was required to prove in or- App. D. C. 358; Jacksonville Elec. der to recover and in another para- Co. v. Adams, SO Fla. 429, 39 So. 183, graph informed them what would be 2 L. R. A. (N. S.) 512, 111 Am. St. a complete defense to the matters 121; Slack v. Harris, 200 111. 96, 65 mentioned in the former paragraph N. E. 669; Hoffman v. Tossetti and the instructions when considered Brewing Co., 257 111. 185, 100 N. E. together properly stated the law ap- 531; Fox v. People, 84 111. App. 270; 72 INSTRUCTIONS RULES. 1 06 refused,^^ although it asserts a correct principle of law.^^ And so, where there are several important issues involved in a cause, it is error to point out any one issue in such a way as to make it appear to be the dominant one.^* A frequent example of this vice occurs in instructions which single out facts favorable to a party and lay stress on them without referring to matters tend- ing to overcome them.^* It may be said, further, that where the law applicable to a particular point in a case has been correctly laid down, the court may properly refuse to give undue emphasis to this feature by means of another instruction along the same line.^^ Undue prominence may be given by underscoring por- tions of instructions and this practice is condemned for its tend- ency to cause the jury to undervalue the portions not so under- scored.^' But, while the court should carefully avoid singling Gruber v. Adams, ISS 111. App. 110; North V. Jones (Ind. App.), 100 N. E. 84; In re Townsend's Estate, 122 Iowa 246, 97 N. W. 1108; Gray v. Chicago &c. R. Co. (Iowa), 139 N. W. 934; Kerr v. Coberly, 81 Kans. 376, 105 Pac. 520; Jones v. Jones, 102 Ky. 450, 43 S. W. 412; Chesapeake &c. R. Co. V. Lang, 141 Ky. 592, 133 S. W. 570; Kenny v. Ipswich, 178 Mass. 368, 59 N. E. 1007; Roach v. Hinchchffe, 214 Mass. 267, 101 N. E. 383; Morrison v. Holder, 214 Mass. 366, 101 N. E. 1067; Beurmann v. Van Buren, 44 Mich. 496, 7 N. W. 67; First Nat. Bank v. Union Trust Co., 158 Mich. 94, 122 N. W. 547, 133 Am. St. 362; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 101 Miss. 91, 57 So. S4S; Corder v. O'Neill, 176 Mo. 401, 75 S. W. 764; Albertini v. Linden, 45 Mont. 398, 123 Pac. 400; Davis v. Concord &c. R. Co., 68 N. H. 247, 44 Atl. 388; Lake Shore &c. R. Co. v. Whidden, 23 Ohio Cir. Ct. 85; Crossen v. Oliver, 41 Ore. SOS, 69 Pac. 308; Reynolds v. Narragansett Elec. Light. Co., 26 R. I. 457, 59 Atl. 393; Carr v. Mouzon, 86 S. Car. 461, 68 S. E. 661 ; Texas &c. R. Co. v. Syf an (Tex. Civ. App.), '43 S. W. 551; Ft. Worth Belt R. Co. v. Johnson (Tex. Civ. App.), 125 S. W. 387; Vaillancourt v. Grand Trunk R. Co., 82 Vt. 416, 74 Atl. 99; Fidelity Trust Co. v. Wisconsin Iron Works, 145 Wis. 385, 129 N. W. 615. The court may properly refer to features of the evidence, making no attempt to give particular prominence to any part, so as to suggest the weight that should be given thereto. Secard v. Rhine- lander Lighting Co., 147 Wis. 614, 133 N. W. 45. =" Slack V. Harris, 200 111. 96, 6S N. E. 669. " Handrey v. Brinson, 175 Ala. 236, 56 So. 971; Davis v. Concord &c. R. Co., 68 N. H. 247, 44 Atl. 388. "" Jacksonville Elec. Co. v. Adams, 50 Fla. 429, 39 So. 183, 2 L. R. A. (N. S.) 512, 111 Am. St. 121. ■"Cerriglio v. Pettit, 113 Va. S33, 75 S. E. 303. ^'Reynolds v. Narragansett Elec. Light. Co., 26 R. I. 457, 59 Atl. 393. "Wright V. Brosseau, 73 111. 381. But see Philpot v. Lucas, 101 Iowa 478, 70 N. W. 625, where it is held 107 FORM AND ARRANGEMENT. § 73 out a particular fact or phase of the case in such a way as to give it undue emphasis, yet it is within the bounds of propriety to make mention of certain evidential facts and instruct as to the law applicable thereto.^^ The fact that the contentions of one party are stated at greater length than those of the other party does not conclusively show that undue stress is laid upon the con- tentions of the former.^' § 73. Undue prominence to matters of evidence. The rule against undue emphasis is violated where an in- struction places (1) extra stress upon specified evidential matters, (2) or upon the testimony of a certain witness. ( I ) The action of the court in directing attention to particular features of the evidence, in such a way as to single them out and give them an undue prominence, will constitute prejudicial error.'" A trial judge should avoid directing especial attention to the evidence on one side, while ignoring the other,'^ and although particular elements or phases of the evidence are proper subjects for comment on the part of counsel in the argument of the case before the jury, the court will be right in declining to notice such points specially or so as to put undue emphasis upon them."^ As a general rule, however, though an instruction may give special prominence to particular evidentiary facts, it will not afford that the court may underscore words v. Howe, 99 Mass. 88, 96 Am. Dec. usually italicized in legal treatises. 697; Webster v. Sibley, 72 Mich. 630, ''Haines v. Goodlander, 73 Kans. 40 N. W. 772; Rose v. Spies, 44 Mo. 183, 84 Pac. 986. 20; Kleutsch v. Security Mutual Life ""Phinizy V. Bush, 135 Ga. 678, 70 Ins. Co., 72 Nebr. 75, 100 N. W. 139; S. E. 243. Pearlstine v. Westchester Fire Ins =° Pearson v. Adams, 129 Ala. 157, Co., 70 S. Car. 75, 49 S. E. 4; Lauch- 29 So. "yil; Western Coal &c. Co. v. heimer v. Saunders, 27 Tex. Civ. Jones, 75 Ark. 76, 87 S. W. 440; Illi- App. 484, 65 S. W. 500; McMechen nois Cent. R. Co. v. Griffin, 184 111. 9, v. McMechen, 17 W. Va. 683, 41 Am 56 N. E. 337 ; Honick v. Metropolitan Rep. 682. St. R. Co., 66 Kans. 124, 71 Pac. 265 ; '"• Coman v. Wunderlich, 122 Wis. Moran v. Higgins, 19 Ky. L. 456, 40 138, 99 N W. 612. S. W. 928; Safe-Deposit &c. Co. v. ''Atwood Lumber Co. v. Watkins, Berry, 93 Md. 560, 49 Atl. 401 ; Howe 94 Minn. 464, 103 N. W. 332, § 74 INSTRUCTIONS RULES. Io8 ground for reversal, if such evidentiary facts are of controlling importance/^ (2) Placing undue stress upon the testimony of a particular witness should be avoided."* Thus an instruction w^ill be faulty where it directs the jury- to find for the defendant in case they do not believe the evi- dence of a certain witness, naming him, or to find for the de- fendant if they do believe the evidence of another specified witness.''^ So where an instruction unduly singles out the tes- timony of certain witnesses and makes the whole question of the signing of a note turn upon their evidence, it is erroneous.^* But a general instruction as to the right of the jury to disregard the testimony of any witness who has wilfully sworn falsely as to any material matter, unless corroborated, has been held not to give undue prominence to the testimony of any particular wit- ness but to leave it to the jury to say to what witnesses, if any, it appljes.^^ § 74. Undue prominence in criminal cases. The principle which condemns instructions which single out"* or give due prominence to particular evidence or phases =' Harding v. St. Louis Nat. Stock- 412; Tribble v. State, 14S Ala. 23, 40 yards Co., 149 111. App. 370. To in- So. 938; Griffin v. State, 165 Ala. 29, struct singly with respect to a par- SO So. 962; Pope v. State, 174 Ala. ticular substantive defense is not the 63, 57 So. 245 ; Montgomery v. State, singling out or selection of a par- 2 Ala. App. 25, 56 So. 92; Herndon ticular fact. Sheridan v. Chicago &c. v. State, 2 Ala. App. 118, 56 So. 85; R. Co., 153 111. App. 70. Hosey v. State, 5 Ala. App. 1, 59 So. "Louisville &c. R. Co. v. Perkins, 549; Kirby v. State, 5 Ala. App. 128, 144 Ala. 325, 39 So. 305 ; Donahue v. 59 So. 374 ; Baldwin v. State, 46 Fla. Egan, 85 111. App. 20; Mississippi 115, 35 So. 220, 110 Am. St. 87; Har- Cent. R. Co. v. Hardy, 88 Miss. 732, rell v. State, 121 Ga. 607, 49 S. E. 41 So. 505; Cogdell v. Southern R. 703; People v. Strauch, 247 III. 220, Co., 129 N. Car. 398, 40 S. E. 202, 93 N. E. 126, 139 Am. St. 319; Graff ''Louisville &c. R. Co. v. Morgan, v. People, 108 111. App. 168; People 114 Ala. 449, 22 So. 20. v. Dressen, 158 111. App. 139; Com- " Donahue v. Egan, 85 111. App. 20. monwealth v. Borasky, 214 Mass. 313, "Healea v. Keenan, 244 111. 484, 91 101 N. E. in-, State v. Shelton, 223 N. E. 646. Mo. 118, 122 S. W. 732; State v. =« League v. State, 144 Ala. 42, 40 Mitchell, 229 Mo. 683, 129 S. W. 917, So. 312; Whatley v. State, 144 Ala. 138 Am. St. 425; State v. Jones, 32 68, 39 So. 1014, 3 L. R. A. (N. S.) Mont. 442, 80 Pac. 1095; Chapman 109 FORM AND ARRANGEMENT. §74 of a case applies with equal force in criminal cases ;'° but this fault will not ordinarily work a reversal unless it is clear that prejudice has resulted to the accused.*" Under this rule it is improper for the court to select the evi- dence of any witness/^ though it be the accused and charge spe- cially on such evidence. The tendency of such instructions is to lead the jury to dissociate such evidence from the rest of the evi- dence while it is their duty to consider all the evidence.*^ Where V. State, 61 Nebr. 888, 86 N. W. 907; Black V. State, 5 Okla. Cr. 512, 115 Pac. 604; State v. Driggers, 84 S. Car. 526, 66 S. E. 1042, 137 Am. St. 855; Cooper v. State, 123 Tenn. ZT, 138 S. W. 826; Smith v. State (Tex. Cr.), 49 S. W. 583; Beard v. State, 57 Tex. Cr. 323, 123 S. W. 147 ; Wadkins V. State, 58 Tex. Cr. 110, 124 S. W. 959, 137 Am. St. 922 ; Canon v. State, 59 Tex. Cr. 398, 128 S. W. 141 ; Har- relson v. State, 60 Tex. Cr. 534, 132 S. W. 783 ; Barber v. State, 64 Tex. Cr. 96, 142 S. W. 577; Tucker v. State (Tex. Cr.), 150 S. W. 190; Montgomery v. Commonwealth, 98 Va. 852, il S. E. 1 ; State v. Morgan, 35 W. Va. 260, 13 S. E. 385; State V. Morrison, 49 W. Va. 210, 38 S. E. 481; State v. Dodds, 54 W. Va. 289, 46 S. E. 228. '•Seawright v. State, 160 Ala. 33, 49 So. 325; Bell v. State, 170 Ala. 16, 54 So. 116 (proof of good charac- ter) ; Moore v. State, 59 Tex. Cr. 361, 128 S. W. 1115; Roquemore v. State, 59 Tex. Cr. 568, 129 S. W. 1120, 29 L. R. A. (N. S.) 858. "Jacobi V. State, 133 Ala. 1, 32 So. 158; Whatley v. State, 144 Ala. 68, 39 So. 1014, 3 L. R. A. (N. S.) 412. "Jones V. State, 174 Ala. 85, 57 So. 2:(>\ Cardwell v. State, 1 Ala. App. 1, 56 So. 12; Coates v. State, 1 Ala. App. 35, 56 So. 6; Parker v. State, 7 Ala. App. 9, 60 So. 995 ; People v. Whalen, 151 111. App. 16; People v. Spencer, 171 111. App. 237; State v. Chinn, 153 Mo. App. 611, 133 S. W. 1196; State v. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. 558; Mitchell V. State, 2 Okla. Cr. 442, 101 Pac. 1100; Price v. United States, 2 Okla. Cr. 449, 101 Pac. 1036; Clark v. State, 4 Okla. Cr. 368, 111 Pac. 659; Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949; Peck v. State, 5 Okla. Cr. 104, 113 Pac. 200; Allen v. State, 64 Tex. Cr. 225, 141 S. W. 983. Par- ticular testimony was singled out by an instruction that the fact that the deceased had money before but not after his death was not evidence of the guilt of defendant but merely showed motive. Mims v. State (Tex. Civ. App.), 153 S. W. 321. An in- struction that the fact that the de- fendant attempted to commit suicide to be taken as evidence of insanity should not be given as it makes this fact of itself evidence of insanity whereas it is only one phase of the evidence to be considered with all the other evidence. People v. Owens, 123 Cal. 482, 56 Pac. 251. "'Johnson v. State, 1 Ala. App. 102, 55 So. 321 ; Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679; Madison v. State, 6 Okla. Cr. 356, 118 Pac. 617. Instruction objectionable as singling where it tells the jury that it is their duty to contrast the man- ner and demeanor of defendant while testifying with that of the witnesses § 75 INSTRUCTIONS RULES. I lO the testimony of the witnesses for the state is especially i-eferred to and narrated in the charge to the jury it is the duty of the court to also give like prominence to the testimony and explana- tions relating to the same subject on the part of the accused.*^ But the fact that the trial judge takes more time in charging the jury in regard to the evidence of the state than he does in charg- ing as to the evidence of the defendant does not place undue em- phasis on the case of the state, where the evidence of the state is much more voluminous than that of the defendant.** Undue emphasis on particular evidence was held to have been given by an instruction that the theory of the law in admitting dying dec- larations is that a person would be just as sure to make a truth- ful statement when he is in the article of death as he would if under the sanctity of an oath.*"* Undue weight is given to in- structions by underscoring words and phrases therein, and this practice should not be indulged.*^ § 75. Argumentative instructions. The object of instructions is to state the issues and apply principles of law thereto rather than to argue the question in for the state. Pope v. State, 168 should weigh it as they would that of Ala. 33, 53 So. 292. Instruction gives any other witness. Tardy v. State, 4§ undue prominence where it charges Tex. Cr. 214, 78 S. W. 1076. An that accused is a competent witness instruction that while the defend- for himself but the jury may con- ant is a competent witness the jury sider his interest in the event in de- may consider his situation and inter- termining his credibility. Guiaccimo est in the result and all the circura- V. State, S Okla. Cr. 371, US Pac. 129. stances surrounding him and give to Instruction condemned as singling out his testimony only such weight as in facts where instruction declared that their judgment it is fairly entitled to the fact that defendant was an in- is not open to the objection that it fant could be considered in deter- singled defendant out from the body mining whether he acted deliber- of witnesses for comment. State v ately or with criminal negligence. Gil- Melvern, 32 Wash. 7, 72 Pac. 489. Christ V. State, 100 Ark. 330, 140 S. *^ People v. Murray, 72 Mich. 10. W. 260. In a prosecution for mur- 40 N. W. 29. der an instruction was properly re- "Commonwealth v. Clemmer, 190 fused because singling out testimony Pa. 202, 42 Atl. 675. of the defendant which told the jury "Baker v. State, 12 Ga. App. 553, that the defendant was a competent 77 S. E. 884. witness and that the jury were the '° State v. Cater, 100 Iowa 501, 69 sole judges of his testimony and N. W. S80. Ill FORM AND ARRANGEMENT. §75 controversy, and it follows that instructions which take the form of an argument to the jury should not be given by the court/^ One objection to instructions of this character is that they tend to lead the court to invade the function of the jury to determine the weight, probative effect, and sufficiency of the evidence, and what inferences of fact should be drawn from the evidence ad- duced/^ The rule is violated by instructions which seek to em- phasize matters properly subject for argument to the jury.*' In- structions have been held argumentative which told the jury that the law abhors fraud ;°° that it is a sound rule of law that if a witness is found to wilfully swear falsely in one material thing, the jury may disregard the whole of his testimony;" that an accusation of slander is easy to be brought and hard to defend, though the defendant is innocent.°^ So an instruction is argu- "King V. Franklin, 132 Ala. 559, 31 So. 467 ; Penry v. Dozier, 161 Ala. 292, 49 So. 909; Louisville &c. R. Co. V. Perkins, 165 Ala. 471, 51 So. 870; Southern R. Co. v. Smith (Ala.), 58 So. 429; In re Dolbeer's Estate, 149 Cal. 227, 86 Pac 695 ; McCormick v. Parriott, 33 Colo. 382, 80 Pac. 1044; Escambia County Electric Light &c. Co. V. Sutherland, 61 Fla. 167, 55 So. 83; Macon R. &c. Co. v. Vining, 123 Ga. 770, 51 S. E. 719; Griffing Wheel Co. v. Markus, 79 111. App. 82 ; Vackar v. Yeager, 151 111. App. 144; Dickey v. Ghere, 163 111. App. 641; Wyman v. Whicher, 179 Mass. 276, 00 N. E. 612; O'Dea v. Michigan Cent. R. Co., 142 Mich. 265, 105 N. W. 746; Ream v. St. Paul City R. Co., 82 Minn. 98, 84 N. W. 652; Mel- ican V. Missouri-Edison Elec. Co., 90 Mo. App. 595 ; Asbury v. Kansas City, 161 Mo. App. 496, 144 S. W. 127, Cottrell V. Fountain, 80 N. J. L. 1, 77 Atl. 465; Daniel v. Dixon, 161 N. Car. 377, 77 S. E. 305; Jackson Knife '&c. Co. v. Hathaway, 27 Ohio Cir. Ct. 745; Missouri &c. R. Co. V. Carter, 95 Tex. 461, 68 S. W. 159; Gilmore v. Brown (Tex. Civ. App.), 150 S. W. 964; Cowie v. Se- attle, 22 Wash. 659, 62 Pac. 121, 79 Am. St. 957. The court should re- fuse instructions prepared by coun- sel stating general propositions which merely support an argument in favor of the party presenting it. San Pedro &c. R. Co. v. Thomas, 187 Fed. 790. Where long and unnecessary instruc- tions be given, containing mere repeti- tions amounting to an argument a re- versal should be granted if the ver- dict is clearly the result of such in- structions. Grudzinski v. Chicago City R. Co., 165 111. App. 152. « Wolff V. Carstens, 148 Wis. 178, 134 N. W. 400, 38 L. R. A. (N. S.) 383. "Albertini v. Linden, 45 Mont. 398, 123 Pac. 400. " McClendon v. McKissack, 143 Ala. 188, 38 So. 1020, 111 Am. St. 34. "' McClendon v. McKissack, 143 Ala. 188, 38 So. 1020, 111 Am. St. 34, "'McLaughlin v. Beyer (Ala.), 61 So. 62. § 75 INSTRUCTIONS RULES. 1 12 mentative which attempts to point out what acts, or omissions on the part of the plaintiff, in an action for personal injuries, con- stitute negligence."^ An instruction in an action for the death of a boy from contact with a highly charged wire was held argu- mentative which told the jury that "boys can seldom be said to be negligent when they merely follow the irresistible impulses of their own nature, and instincts common to all boys."°* So in a will contest involving the question of undue influence an instruc- tion was argumentative which told the jury that affection and desire to gratify another's wishes are not such coercion as de- feats testamentary disposition, all the better instincts being left in full play, and are harmless, unless testator's power of inde- pendent action is overcome.^^ An instruction in a railroad cross- ing personal injury case that if the plaintiff could have seen the train at the time and place he testified to having looked therefor, he must be held to have seen it, or to have not looked, has been held argumentative.^^ An instruction in a will contest was held argumentative which told the jury that wills are often made in extremis and when the bodily powers are broken and the mental faculties enfeebled. The instruction was also open to the objec- tion that it did not state a rule of law.°'' But, while the giving of argumentative instructions is a practice to be condemned, the fact that an instruction is argumentative in form will not neces- '' Pittsburg &c. R. Co. V. Banfill, and, if plaintiff failed to use due and 206 111. 553, 69 N. E. 499; Cowie v. ordinary precaution that a prudent Seattle, 22 Wash. 659, 62 Pac. 121, person would under the circumstances 79 Am. St. 957 (sidewalk injuries), and was injured in consequence of Instruction argumentative which said such failure to protect herself from "I charge you that it was plain- injury as a prudent person would tiff's duty to be observant and to heed have done, then she can not recover what was going on around her, to no- in this action." O'Dea v. Michigan tice whether or not the train was sta- Cent. R. Co., 142 Mich. 265, 105 N. tionary, and to observe when it W. 746. started, and, when alighting, it was her " Pierce v. United Gas &c. Co., 161 duty to protect herself and assist her- Cal. 176, 118 Pac. 700. self by the hand-rails on the car plat- " Council v. Mayhew, 172 Ala. 295, form and running down the steps of 55 So. 314, Ann. Cas. 1913 D, 651. the car which were prepared for that " Case v. Chicago Great Western purpose, and to be vigilant and see R. Co., 147 Iowa 747, 126 N. W. 1037. that no sudden movement would trip " Huffman v. Graves, 245 •111. 440, or throw her if she could prevent it; 92 N. E. 440. "3 FORM AND ARRANGEMENT. 76 sarily cause a reversal, if the charge, as a whole, correctly in- structs the jury as to the material issues."^ § 76, Argumentative instructions in criminal cases. The rule against argumentative instructions is equally ap- plicable to criminal prosecutions and instructions which amount to no more than mere argument should not be given to the jury in such cases."' The court should refuse argumentative instructions bearing upon the weight and credibility of the accused as a witness,^" of expert "'McCormick v. Parriott, 33 Colo. 382, 80 Pac. 1044. "Mitchell V. State, 129 Ala. 23, 30 So. 348; Pope v. State, 137 Ala. 56, 34 So. 840; Tribble v. State, 145 Ala. 23, 40 So. 938; Simmons v. State, 145 Ala. 61, 40 So. 660; Turner v. State, 160 Ala. 40, 49 So. 828; Troup v. State, 160 Ala. 125, 49 So. 332 ; Gas- ton V. State, 161 Ala. 37, 49 So. 876; Montgomery v. State, 169 Ala. 12, S3 So. 991 ; Fowler v. State, 170 Ala. 65, 54 So. US; Pope v. State, 174 Ala. 63, 57 So. 245; Gaston v. State (Ala.), 60 So. 805; Barney v. State, 5 Ala. App. 302, 57 So. 598; Brock V. State (Ala. App.), 61 So. 474; White V. State, 105 Ark. 698, 152 S. W. 163; People v. Hatch, 163 Cal. 368, 125 Pac. 907; McQueary v. Peo- pie, 48 Colo. 214, 110 Pac. 210; Bald- win V. State, 46 Fla. 115, 35 So. 220, 110 Am. St. 87; Bass v. State, 58 Fla. 1, SO So. 531; Ballard v. State, 11 Ga. App. 104, 74 S. E. 846; Zuckerman v. People, 213 111. 114, 72 N. E. 741; State V Ardoin, 49 La. Ann. 1145, 22 So. 620, 62 Am. St. 678; People v. Hanaw, 107 Mich. 337, 65 N. W. 231 ; People V. Dupree (Mich.), 141 N. W. 672; State v. Buralli, 27 Nev. 41, 71 Pac. 532. An instruction was argu- mentative which told the jury that they were not required to find who did the shooting unless they should be convinced beyond a reasonable doubt that the defendant did it. Sprag- gins V. State, 139 Ala. 93, 35 So. 1000. An instruction selecting certain parts of the evidence and submitting it to the attention of the jury and direct- ing the attention of the jury to a certain witness and what he stated is bad as being argumentative. State v. Chinn, 153 Mo. App. 611, 133 S. W. 1196. ™ People V. Holden, 13 Cal. App. 354, 109 Pac. 495 (caution as to verbal admission) ; People v. Keating, 247 111. 76, 93 N. E. 95. A requested in- struction was argumentative which told the jury that statements made by the accused out of court should be received with caution and the jury might consider that there was dan- ger of mistake or misapprehension of witnesses, misuse of words, failure of the party to express his meaning, the infirmity of memory of witnesses, and this applies where only a part of the declarations of the accused were put in evidence. People v. Muhly, 11 Cal. App. 129, 104 Pac. 466. 8 — Branson's Inst. ^77 INSTRUCTIONS RULES. 114 witnesses," of officers as witnesses," of circumstantial evidence,^* and of dying declarations/* Instructions are generally open to the charge of argumentativeness where they go into general dis- sertations on the relative rights of society and the accused and the solicitude of society that no innocent person should be con- demned.'^^ § 77. Appeals to sympathy or prejudice, A fair trial on the issues presenjted is defeated by instruc- tions which have a tendency to excite sjrmpathy, passion or prejudice, and such instructions may not be given and if given will ordinarily work a reversal at the instance of a party prejudiced thereby. "" Thus there was a violation of the rule by an instruction that "Miller v. State (Okla. Cr.), 131 Pac. 717. "''An instruction was argumentative which told the jury in a trial for vio- lating a prohibitory law that in de- termining the weight to be given the testimony of certain witnesses, the jury should consider that they were deputy sheriffs and that the sheriff gets his compensation from fees. Sapp V. State, 2 Ala. App. 190, 56 So. 45. •"State V. Marren, 17 Idaho 766, 107 Pac. 993, 134 Am. St. 286. An instruction was argumentative which advised the jury that the fact that the jurors had said on oath they would convict on circumstantial evi- dence did not mean that the jury must convict. Phillips v. State, 162 Ala. 14, SO So. 194. "^ Instruction properly refused as argumentative in prosecution for murder which told the jury that al- though the dying declarations of de- ceased are admissible in evidence, yet they must be received with grave cau- tion. Twitty v. State, 168 Ala. 59, 53 So. 308.' "= Bell v. State, 140 Ala. 57, 37 So. 281; Parker v. State, 165 Ala. 1, 51 So. 260 ; Smith v. State, 165 Ala. 74, 51 So. 632; Humphries v. State, 2 Ala. App. 1, 56 So. 72; People v. Ebanks, 117 Cal. 652, 49 Pac. 1049, 40 L. R. A. 269; Mixon v. State, 123 Ga. 581, 51 S. E. 580, 107 Am. St. 149; State V. Fleming, 17 Idaho 471, 106 Pac. 305 ; People v. Davidson, 240 111. 191, 88 N. E. 565; McCue v. Com- monwealth, 103 Va. 870, 49 S. E. 623. An instruction was argumentative which advised the jury that the law does not desire the punishment of persons only reasonably guilty but only of those who are guilty to a moral certainty. Saulsberry v. State (Ala.), 59 So. 476. A court properly refuses an instruction as to the pol- icy of the law in relation to the con- viction of innocent persons as the court is required to state to the jury the law and not the reason for its enactment. People v. Smith, 13 Cal. App. 627, 110 Pac. 333. °° Northwestern Mut. Life Ins. Co. V. Stevens, 71 Fed. 258. 115 FORM AND ARRANGEMENT. % jy "in passing upon this case you will be governed by the law and the evidence and it is your duty not to allow yourselves to be in- fluenced by the presence of a lobby in the courtroom opposed to the granting of the plaintiff's petition.""^ So, in an action against a benefit society, there was an appeal to sympathy by an instruc- tion which asked the jury to determine the issues "in the same manner as if the widow was plaintiff, and not the brother.""^ In an action for seduction, the jury were told in one instruction that a certain state of facts would constitute a strong circum- stance tending to establish plaintiff's right to recover and in an- other instruction were informed that if these same facts were susceptible of explanation as well on the theory of innocence as guilt, such facts, from considerations of sympathy and public policy, should be construed favorably to defendant. The instruc- tion was erroneous, as the question to be decided was whether the plaintiff had sustained damage and he was entitled to have the matter determined free from the influence of sentimental considerations.'"' There was a clear attempt to arouse prejudice in an action by a widow and her child against an insurance com- pany, where the charge of the court was in part in the following language : "Now, gentlemen of the jury, I try to close my eyes as well as I can to the fact that a woman and child have any in- terest whatever in the result of a controversy when it is brought into court. I can not always do that. I don't suppose you can. It is not expected. If a man can do that, he is no better than a brute. He is as bad as the heathen is supposed to be and worse than the horse-thief is thought to be. If he could close his eyes to that fact, lose all sense of decency and self-respect, he would not be fit for a juror. But, so far as it is possible for you to do that, you do so, and decide the case precisely as you would if it were between man and man or between a woman and a " Lynch v. Bates, 139 Ind. 206, 38 °° Robertson v. Brown, 56 Nebr. 390, N. E. 806. 76 N. W. 891. "National Council v. O'Brien, 112 111. App. 40. §78 INSTRUCTIONS RULES. Il6 woman."^" But in a suit against a street railway company for negligently causing the death of a child, where the trial judge told the jury it was natural for them to have their sympathies aroused in behalf of suffering, and was not asked to instruct that the jury must not allow their sympathies to enter into the con- sideration of the case, and where the court afterward cautioned the jury to divest themselves of sympathy or prejudice in arriv- ing at their verdict, it was held that there was no reversible § 78. Special findings. Where special questions of fact, for findings thereon, are submitted to the jury, instructions are sufficient which re- quire the jury to respond to each question on the weight of the evidence. It is the jury's duty to answer each question according to the preponderance of the evidence thereon, rather than to reconcile the answers. Hence it is error to instruct that "your answers to these questions, if any, should be consistent with each other."" So, special prayers concluding with the request that the court in- struct that the "plaintiff can not recover" are rightly refused, since the jury responds to the issues instead of finding a general verdict, and instructions of this character might have a tendency to confuse.''^ But where the court said to the jury : "Answer the questions put to you, keeping in mind that the answers to these questions should be consistent with the verdict which you find," it was held that, as the court was merely reminding the jury that the general verdict should be in accord with the facts as the jury found them, there was nothing of a misleading character.'* "Northwestern Mut. Life Ins. Co. "Witsell v. West Asheville &c. R. V. Stevens, 71 Fed. 258. Co., 120 N. Car. 557, 27 S. E. 125. "Citizens' St. R. Co. v. Dan, 102 "People v. Murray, S2 Mich. 288, Tenn. 320, 52 S. W. 177. . 17 N. W. 843. " St. Louis &c. R. Co. V. Burrows, 62 Kans. 89, 61 Pac. 439. CHAPTER V. PERTINENCY. Section 79. Necessity that instructions should be pertinent. 80. Pertinency of instructions in criminal prosecutions. 81. Pertinency to pleadings. 82. Pertinency to averments in in- dictment. 83. Pertinency to evidence adduced. 84. Pertinency to evidence adduced in criminal prosecution. Section 85. Abstract instructions. 86. Abstract instructions in criminal prosecutions. 87. Ignoring issues. 88. Ignoring evidence. 89. Setting out evidence to support verdict. 90. Ignoring issues and evidence in criminal prosecutions. § 79. Necessity that instructions should be pertinent. Instructions must be pertinent to the evidence and the is- sues made by the pleadings.^ Where an instruction inappropriate to any question of fact in- volved in the case is tendered, the court commits no error in de- clining to give it.^ Thus a prayer is rightly refused which does not ask an instruction as to an issue or issues, but merely that "the plaintiff would not be entitled to recover."^ So, in an ac- tion to recover for personal injuries alleged to have been sus- 'Wahlgren v. Market St. R). Co., 132 Cal. 656, 62 Pac. 308, 52 L. R. A. 611; Davis v. SI»epherd, 31 Colo. 141, 12 Pac. 57, 62 L. R. A. 555, 102 Am. St. 23; Court Harmony, A. O. F., v. Court Abraham Lincoln, A. O. F., 70 Conn. 634, 40 Atl. 606; Hill v. Ludden &c. Southern Music House, 113 Ga. 320, 38 S. E. 752; Travelers' Ins. Co. V. Ayers, 119 111. App. 402; Norris v. Casel, 90 Ind. 143; Cleve- land &c. R. Co. v. Griswold (Ind. App.), 97 N. E. 1030; Lindsey v. Leighton, 150 Mass. 285, 22 N. E. 901, IS Am. St. 199; Stalzer v. Jacob Dold Packing Co., 84 Mo. App. 565 ; Han- over Fire Ins. Co. v. Stoddard, 52 Nebr. 745, 73 N. W. 291 ; Lamkin v. Palmer, 164 N. Y. 201, 58 N. E. 123 ; Franklin v. Hoadley, 145 App. Div. 228, 130 N. Y. S. 47 ; Willis v. Atlantic &c. R. Co., 122 N. Car. 905, 29 S. E. 941; Ft. Smith &c. R. Co. v. Collins, 26 Okla. 82, 108 Pac. 550; Long v. Hunter, 58 S. Car. 152, 36 S. E. 579, 79 Am. St. 836 ; Fletcher v. Louisville &c. R. Co., 102 Tenn. 1, 49 S. W. 739; Alexandria Sav. Inst. v. McVeigh, 84 Va. 41, 3 S. E. 885. '' Court Harmony, A. O. F., v. Court Abraham Lincoln, A. O. F., 70 Conn. 634, 40 Atl. 606. 'Willis V. Atlantic &c. R. Co., 122 N. Car. 905, 29 S. E. 941. 117 § 8o INSTRUCTIONS RULES. Il8 tained at the hands of a fellow-servant, the court's refusal to charge with relation to the matter of sudden emergency is not erroneous where no such feature is presented by the declaration and there is nothing in the case showing such emergency.* § 80. Pertinency of instructions in criminal prosecutions. The foregoing rule in its application to criminal prosecu- tions is that the instructions must be pertinent to the facts charged in the indictment and shown by the evidence ad- duced.^ Instructions should not be given on issues which do not arise in the case/ or which are immaterial/ even though they state correct propositions of law.* Thus on a trial for an illegal sale of liquor it was held improper to instruct on a sale on prescrip- tion where there was no issue as to a sale on prescription.' § 81. Pertinency to pleadings. The purpose of instructions is to apply principles of law to the issues and this purpose is defeated and error is committed by instructions which present issues not made by the plead- ings. The instructions must be within the purview of the 'Fletcher v. Louisville &c. R. Co., So. 580; State v. Powell, 109 La. 727, 102 Tenn. 1, 49 S. W. 739. 33 So. 748; Spaulding v. State, 61 = People V. Carroll, 20 Cal. App. 41, Nebr. 289, 85 N. W. 80. 128 Pac. 4; Peeler v. State, 64 Fla. 'Franklin v. United States, 193 385, 59 So. 899; Lindsay v. State, 138 Fed. 334; State v. Ewing, 67 Wash. Ga. 818, 76 S. E. 369; Gamble v. Com- 395, 121 Pac. 834; State v. Clark, 51 TOonwealth, 151 Ky. 372, 151 S.^W. W. Va. 457, 41 S. E. 204, 90 Am, St. 924; Kirk v. Territory, 10 Okla. 46, 819. 60 Pac. 797. Instruction only slightly = People v. Williams, 240 111. 633, 88 pertinent to the evidence should be N. E. 1053 ; State v. Lahore, 80 Kans. refused. Rigsby v. State, 174 Ind. 664, 103 Pac. 106. 284, 91 N. E. 925. "Edwards v. State (Tex. Cr. App.), ° Hall V. State, 130 Ala. 45, 30 So. 38 S. W. 779. 422; Wilson v. State, 47 Fla. 118, x36 119 PERTINENCY. §Si pleading," and this, of course, excludes consideration of abandoned or withdrawn issues." A very serious objection to instructions affected with this vice is that they mislead the jury.^^ Among other things the court should not submit the defenses of contributory negligence,^^ or assumption of risk where these defenses are not pleaded.^* "Jones V. Union Foundry Co., 171 Ala. 225, 55 So. 153 ; Cooper v. Spring Val. Water Co., 16 Cal. App. 17, 116 Pac. 298; Walsh v. Jackson, 33 Colo. 454, 81 Pac. 258; Savannah &c. R. Co. V. Tiedman, 39 Fla. 196, 22 So. 658; Collins V. Goodwin (Fla.), 61 So. 632; Sanders v. Southern R. Co., 107 Ga. 132, 32 S. E. 840; Gruns- ley V. Singletary, 133 Ga. 56, 65 S. E. 92, 134 Am. St. 196; Southern R. Co. V. Parham, 10 Ga. App. 531, 73 S. E. Idi; W. W. Kimball Co. v. Piper, 111 111. App. 82; Indianapolis Trac. &c. Co. V. Mathews, 177 Ind. 88, 97 N. E. 320 ; Indiana Union Trac. Co. v. Dow- ney, 177 Ind. 599, 98 N. E. 634; Ver- non V. Iowa State Traveling Men's Assn. (Iowa), 138 N. W. 696; Doug- las V. Wolf, 6 Kans. 88; Missouri Pac. R. Co. V. Haggart, 9 Kans. App. 393, 58 Pac. 796; Mathis v. Taylors- ville Bank, 136 Ky. 634, 124 S. W. 876; Sehon v. Whitt, 28 Ky. L. 1222, 29 Ky. L. 691, 92 S. W. 280; J. E. Smith Co. V. Smick, 119 Md. 279, 86 Atl. 500; Luy v. New York &c. R. Co., 205 Mass. 540, 91 N. E. 1018; Knock V. Boston El. R. Co., 214 Mass. 398, 101 N. E. 968; Kingman & Co. V. Cornell-Tebbetts Mach. &c. Co., ISO Mo. 282, 51 S. W. 727; Degonia V. St. Louis &c. R. Co., 224 Mo. 564, 123 S. W. 807 ; Craton v. Huntzinger, 163 Mo. App. 718, 147 S. W. 512; An- dresen v. Jetter, 76 Nebr. 520, 107 N. W. 789; Bank of Commerce v. Broyles, 16 N.Mex.414, 120 Pac. 670; Roberts v. Baldwin, 155 N. Car. 276, 71 S. E. 319; Obenchain v. Roff, 29 Okla. 211, 116 Pac. 782; Chambers v. Van Wagner, 32 Okla. 774, 123 Pac. 1117; Richey v. Southern R. Co., 69 S. Car. 387, 48 S. E. 285 ; Craig Mill- ing Co. V. Cromer, 85 S. Car. 350, 67 S. E. 289, 137 Am. St. 890; Interna- tional &c. R. Co. V. Tisdale, 36 Tex. Civ. App. 174, 81 S. W. 347; Haueter V. Marty, 150 Wis. 490, 137 N. W. 761. The court must not change the issues made by the pleadings. Sinnamon v. Moore, 161 Mo. App. 168, 142 S. W. 494. The fact that a plea which pre- sents no defense is not met with ob- jection or demurrer, but issue is ta- ken thereto does not require the court to instruct thereon. Newman v. Mc- Comb, 112 Va. 408, 71 S. E. 624. "Cobe V. Coughlin Hdw. Co., 83 Kans. 522, 112 Pac. 115, 31 L. R. A. (N. S.) 1126; Gray V. Chicago &c. R. Co., 90 Nebr. 795, 134 N. W. 961. No reference should be made to issues taken out by demurrer. Fike v. Strat- ton, 174 Ala. 541, 56 So. 929. "Frick-Reid Supply Co. v. Aggers, 28 Okla. 425, 114 Pac. 622. "Birmingham R. &c. Co. v. Fisher, 173 Ala. 623, 55 So. 995 ; Birmingham R. &c. Co. V. Demmins, 3 Ala. App. 359, 57 So. 404; Western Union Tel. Co. v. Wilson, 97 Ark. 198, 133 S. W. 845. " Duffey v. Consolidated Block Coal Co., 147 Iowa 225, 124 N. W. 609, 30 L. R. A. (N. S.) 1067; Lewis v. Texas &c. R. Co., 57 Tex. Civ. App. 585, 122 S. W. 605. § 82 INSTRUCTIONS— 7RULES. 120 Neither should he ordinarily submit the question of mere negli- gence where that issue is not involved but the issue is gross or wilful negligence." So where, in a suit for personal injuries, an instruction is based upon the question whether the plaintiff and other workmen used a certain passageway, and this question is not in issue in the case, it is rightly refused.^^ So also an in- struction was held prejudicially erroneous where it had the effect of advising the jury that if the defendant should establish, by a preponderance of the evidence, fraud in either one of two sales, he would be entitled to recover, and upon the trial no evidence was given questioning the good faith of one of these transac- tions.^' In an action for nuisance counting on unnecessary noises it is error to instruct on right to recover for unusual noises.^* § 82. Pertinency to averments in indictment. In the criminal prosecutions the court may not instruct on any other crime than that charged in the indictment;" neither should he instruct as to counts withdrawn or those to which a nol. pros, had been entered.^" Under this rule it is erroneous to charge on the subject of larceny where the defendant is indicted for embezzlement.^^ And " Tognazzini v. Freeman, 18 Cal. testimony given by the defendant pre- App. 468, 123 Pac. 540; Darby Candy sents issues upon which he might be Co. V. Hoffberger, 111 Md. 84, 73 Atl. acquitted, or upon which the offense 565. might be reduced to a lower degree, "Dolphin V. Plumley, 175 Mass. that he is entitled to have the jury 304, 56 N. E. 281. instructed upon the hypothesis that "Williams v. McConaughey, 58 such testimony is true. Holmes v. Nebr. 656, 79 N. W. 549. State, 6 Okla. Cr. 541, 119 Pac. 430. " Passons v. Missouri &c. R. Co. Where an information is insufficient (Tex. Civ. App.), 137 S. W. 435. to charge the offense intended, though " People V. Mulkey, 65 Cal. 501, 4 it sufficiently charges a lesser included Pac. 507; State v. Robb, 90 Mo. 30, offense, a charge which permits a 2 S. W. 1 ; State v. McLaughlin, 149 conviction of the higher offense is Mo. 19, 50 S. W. 315 ; Covey v. State, reversible error, when the record 43 Tex. 414 ; Bacchus v. State, 18 Tex. leaves it uncertain of which offense App. 15. Where the state's evidence the defendant is guilty. Lomax v. shows the actual commission of a State, 38 Tex. Cr. 318, 43 S. W. 92. crime there is no error in refusing a "■ Oakley v. State, 135 Ala. 29, 33 requested instruction on the subject So. 693. of an attempt to commit the same "Willis v. State, 134 Ala. 429, 33 crime. State v. Sykes, 248 Mo. 708, So. 226. 154 S. W. 1130. It is only where the 121 PERTINENCY. 83 SO in a prosecution under counts for burglary and grand larceny an instruction should be refused which applies only to the offense of larceny. ^^ Instructions on a lower grade or degree of the offense should not be given where there is no evidence of such lower grade offense and the evidence shows that the defendant is either guilty of the crime charged or not guilty of any of- fense.^" § 83. Pertinency to evidence adduced. Instructions must be based on the evidence adduced and where not so predicated they should not be given," for the ""Rose V. State, 117 Ala. 11, 23 So. 638. ■^ Gibson V. State, 10 Ga. App. 117, 72 S. E. 944; State v. Sherman, 106 Iowa 684, n N. W. 461 ; State v. At- kins, 122 Iowa 161, 97 N. W. 996; State V. Fruge, 106 La. 694, 31 So. 323; State v. Colvin, 226 Mo. 446, 126 S. W. 448; Strong v. State, 63 Nebr. 440, 88 N. W. 772; Thompson v. State, 8S Nebr. 244, 122 N. W. 986; Fosbee v. State, 3 Okla. Cr. 666, 108 Pac. 554 ; Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 707. "'Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Phillips v. Bradshaw, 167 Ala. 199, S2 So. 662 ; Grant Bros. Const. Co. V. United States, 13 Ariz. 388, 114 Pac. 955; Snapp v. Stan- wood, 65 Ark. 222, 45 S. W. 546; Doniphan Lumber Co. v. Fix, 95 Ark. 623, 129 S. W. 287; Jones v. Goldtree Bros., 142 Cal. 383, 11 Pac. 939; Den- ver &c. R. Co. V. Spencer, 25 Colo. 9, 52 Pac. 211; Denver City Tramway Co. V. Hills, 50 Colo. 328, 116 Pac. 125, 36 L. R. A. (N. S.) 213; Gris- wold V. Guilford, 75 Conn. 192, 52 Atl. 742; Washington &c. R. Co. v. Lukens, 32 App. D. C. 442; Volusia County Bank v. Bertola, 44 Fla. 734, 33 So. 448; Inman v. Crawford, 116 Ga. 63, 42 S. E. 473; Heard v. Cog- gins, 134 Ga. 52, 67 S. E. 429; Gwin v. Gwin, 5 Idaho 271, 48 Pac. 295; West Chicago St. R. Co. v. Petters, 196 111. 298, 63 N. E. 662; Eggleston V. Castle, 42 Ind. 531 ; Sylvester v. Casey, 110 Iowa 256, 81 N. W. 455; Enslow v. Ennis, ISS Iowa 266, 135 N. W. 1105 ; Thompson v. Chicago &c. R. Co. (Iowa), 139 N. W. SS7; Dowell V. Williams, 33 Kans. 319, 6 Pac. 600; Simpson v. Simpson, 145 Ky. 45, 139 S. W. 1100; Braley v. Powers, 92 Maine 203, 42 Atl. 362; Jones V. Collins, 94 Md. 403, 51 At!. 398; Doyle v. Gibson, 119 Md. 36, 85 Atl. 961; Dale v. Harris, 109 Mass. 193; Marcy v. Shelburne Falls &c. St. R. Co., 210 Mass. 197, 96 N. E. 130; Johnson v. McKee, 21 Mich. 471 ; Wendt v. Richmond, 164 Mich. 173, 129 N. W. 38; Mclnnis v. National Casualty Co., 113 ]\linn. 156, 129 N. W. 125 ; Burnley v. Mullins, 86 Miss. 441, 38 So. 635 ; Alabama &c. R. Co. v. Baldwin (Miss.), 52 So. 358; Chou- teau v. Searcy, 8 Mo. 733; BuUard v. Smith, 28 Mont. 387, 72 Pac. 761 ; Ma- son V. Northern Pac. R. Co., 45 Mont. 474, 124 Pac. 271; Cardwell v. State, 60 Nebr. 480, 83 N. W. 665 ; Wallen- burg V. Missouri Pac. R. Co., 86 Nebr. 642, 126 N. W. 289, Zl L. R. A. (N. S.) 135; Hersey v. Hutchins, 70 N. H. 130, 46 Atl. ii, 85 Am. St. 618; Consolidated Trac. Co. v. Haight, 59 §83 INSTRUCTIONS RULES. 122 tendency of instructions not thus grounded is to confuse and mislead the jury.^^ An instruction may be given though the evidence on which it is based is sHghtf* but not where there is an entire absence of evidence." The instructions may not be based on evidence ex- N. J. L. 577, 37 Atl. 135, 29 L. R. A. '= Schlander v. Chicago &c. Trac. (N. S.) 842; Cottrell v. Fountain, 80 Co., 253 III. 154, 97 N. E. 233. N. J. L. 1, n Atl. 465 ; Cowles v. Ha- '" Snedeker v. Rulong, 69 W. Va. german, 15 N. Mex. 600, 110 Pac.843; 223, 71 S. E. 180. It is reversible Gilbertson v. Forty-second St. &c. R. error to refuse a requested instruc- Cc, 14 App. Div. 294, 43 N. Y. S. tion applicable to the evidence where 782; Hinson v. Postal Tel. Cable Co., the point is not covered by any other 132 N. Car. 460, 43 S.E. 945; Morris instruction. Forsha v. Nebraska Mo- V. Perkins, 6 Ore. 350; Brooks v. line Plow Co., 89 Nebr. 770, 132 N. Pennsylvania R. Co., 2 Pa. Super. Ct. W. 384. 581; Guckian v. Newbold, 22 R. I. "Tompkins v. Montgomery, 123 279, 47 Atl. 543; Hobin v. Hobin, 33 Cal. 219, 55 Pac. 997; Lawson v. Van- R. I. 249, 80 Atl. 595, Ann. Cas. 1913 Auken, 6 Colo. 52; Whitman v. Mc- C, 1120; Haggerty v. Strong, 10 S. Comas, 11 Idaho 564, 83 Pac. 604; Dak. 585, 74 N. W. 1037; Louisville Vallette v. Bilinski, 167 111. 564, 47 &c. R. Co. V. Ray, 101 Tenn. 1, 46 N. E. 770 ; Scobel v. Crisswell, 25 Ind. S. W. 554; Fritz v. Western Union 241; Frank v. Berry, 128 Iowa 223, Tel. Co., 25 Utah 263, 71 Pac. 209; 103 N. W. 358; Olive Hill Fire Brick Sargent v. Union Fuel Co., H Utah Co. v. Ash, 146 Ky. 253, 142 S. W. 392, 108 Pac. 928, Ann. Cas. 1912 C, 403 (no evidence on which to base 241; Birney V. Martin, 3 Vt. 236; Jen- instruction on fellow servant doc- ness V. Simpson, 84 Vt. 127, 78 Atl. 886; Lang v. Clark, 85 Vt. 222, 81 Atl. 625; Richmond City R. Co. v. Scott, 86 Va. 902, 11 S. E. 404; Towle v. trine) ; Callaway v. Burr, 32 Mich. 332; Cobb v. St. Louis &c. R. Co., 149 Mo. 609, 50 S. W. 894; Russell v. Gillespie, 38 Nebr. 461, 56 N. W. 981 ; Stimson Mill Co., 33 Wash. 305, 74 Woodbury v. Butler, 67 N. H. 545, Pac. 471; Brydges v. Cunningham, 69 38 Atl. 379; Schmit v. Gillen, 41 App. Wash. 8, 124 Pac. 131; Campbell v. Div. 302, 58 N. Y. S. 458; Lawton Hughes, 12 W. Va. 183; Eggett v. v. McAdams, IS Okla. 412, 83 Pac. Allen, 106 Wis. 633, 82 N. W. 556. 429; Welch v. Clifton Mfg. Co., Where the evidence conclusively 55 S. Car. 568, 33 S. E. 739; Lynch- showed that a trespasser on a rail- burg v. Wallace, 95 Va. 640, 29 S. E. road track saw an approaching train 675. Instruction on negligence of in time to leave the track in safety, physician in performing operation it was error to submit the question of where no evidence of unskilfulness. the negligence of defendant in failing Tacoma R. &c. Co. v. Erpelding, 202 to ring the bell or blow the whistle. Fed. 187. Submission of numerous Chesapeake &c. R. Co. v. Mountjoy, grounds of negligence is prejudicial 148 Ky. 279, 146 S. W. 371, 39 L. R. where there was evidence as to only A. (N. S.) 465, Ann. Cas. 1913 E, a portion of them. Butler v. Globe 392. Plumbing &c. Co. (Iowa), 126 N. W. 954. 123 PERTINENCY. §83 eluded by the court.''* Even though a rule of law, such as that governing positive and negative testimony, is correctly stated in an instruction, it may be rejected if inapplicable to the evidence,^" and the principle is the same where the basis of an instruction is a certain hypothesis not sustained by the evidence.^" So, where, in an action to recover land, an instruction is based on the theory that plaintiff made no claim to the land until "after he procured certificate of entry from the government," and there was no evidence supporting such theory, the instruction was rightly refused.^^ And so, where there was no evidence showing, or tending to show, that a guardian ad litem had or had not been appointed for infant defendants, an instruction was correctly re- fused which told the jury that if they found from the evidence that certain defendants were "infants under the age of twenty- one, and that no guardian ad litem for them had been appointed in this cause, then their verdict must be for said defendants."^^ An instruction on exemplary damages should not be given where there is an entire lack of evidence of wilfulness, malice, or reck- less indifference to consequences.^^ So an instruction on con- tributory negligence should be refused where there is no evidence of negligence on the part of the plaintiff.^* An instruction should ^Birmingham R. &c. Co. v. Mose- °° Louisville &c. R. Co. v. Cornelius, ley, 164 Ala. Ill, SI So. 424; Citizens 6 Ala. App. 386, 60 So. 740; Savan- Fire Ins. Co. v. Conowings Bridge nah Elec. Co. v. Jackson, 132 Ga. SS9, Co., 116 Md. 422, 82 Atl. 372; Cross- 64 S. E. 680; Malloy v. Chicago Tel. land V. Graham, 83 S. Car. 228, 65 Co., 159 111. App. 556; Norfolk &c. S. E. 233; Bluefield Produce &c. Co. R. Co. v. Stone, 111 Va. 730, 69 S. V. Bluefield, 71 W. Va. 696, 11 S. E. E. 927; Langowski v. Wisconsin Cent. 277. R. Co., 153 Wis. 418, 141 N. W. 236, ""Lawton v. McAdams, 15 Okla. "Findling v. Gitzen, 24 Colo. App. 412. 38, 131 Pac. 1042; Western Union "Moynahan v. Connor, 30 Mich. Tel. Co. v. Brower, 81 Kans. 109, 105 136. Where an instruction is founded Pac. 497; Anne Arundel County v. upon an assumed state of facts, and Carr, 111 Md. 141, li Atl. 668; Mar- the evidence points to a condition di- shall &c. R. Co. v. Blackburn (Tex. rectly opposite, it will be prejudicially Civ. App.), 155 S. W. 625. In a suit erroneous. Dodge v. Brown, 22 Mich, for personal injuries alleged to have 447. been occasioned by the overturning "Coker v. Payne (Ala.), 39 So. of a vehicle, an instruction is rightly 1025. refused which directs the jury to find ^^ Campbell v. Hughes, 12 W. Va. for the defendant if they believe from 183. the evidence that the plaintiff jumped 84 INSTRUCTIONS RULES. 124 be given, however, where there is some evidence tending to sup- port it and the general charge of the court does not sufficiently cover the question raised.^^ So, in a case where the evidence showed a violation of a speed ordinance, the court could instruct that a traveler knew of the ordinance and could presume that it would not be violated though there was no evidence that he knew of the existence of the ordinance.^" § 84. Pertinency to evidence adduced in criminal prosecu- tions. In criminal prosecutions the instructions must be based on facts in proof pertinent to the allegations in the indictment and should not be given unless they have such support," from the conveyance, where there is no evidence justifying a finding that the plaintiff did so. Tompkins v. Montgomery, 123 Cal. 219, SS Pac. 997. " Carrel v. Kalamazoo Cold Stor- age Co., 112 Mich" 34, 70 N. W. 323, 36 L. R. A. 523, 67 Am. St. 381 ; State v. Betsall, 11 VV. Va. 703. "Richmond v. Tacoma &c. Power Co., 67 Wash. 444, 122 Pac. 3S1. "Bird V. United States, 187 U. S. 118, 23 Sup. Ct. 42, 47 L. ed. 100; Plant V. State, 140 Ala. 52, 37 So. 159; Phillips V. State, 162 Ala. 53, SO So. 326; Parker v. State, 165 Ala. 1, 51 So. 260; Cranberry v. State (Ala.), 62 So. 52; Brown v. State, 99 Ark. 648, 138 S. W. 633 ; People v. Trebil- cox, 149 Cal. 307, 86 Pac. 684; Mow V. People, 31 Colo. 351, 72 Pac. 1069; Reagan v. People, 49 Colo. 316, 112 Pac. 785 ; Norman v. United States, 20 App. D. C. 494; Melbourne v. State, 51 Fla. 69, 40 So. 189; Carlton V. State, 63 Fla. 1, 58 So. 486; Rooks V. State, 119 Ga. 431, 46 S. E. 631; Lyman v. People, 198 111. 544, 64 N. E. 974; Braxton v. State, 157 Ind. 213, 61 N. E. 195 ; Brunaugh v. State, 173 Ind. 483, 90 N. E. 1019; State v. Denhardt, 129 Iowa 135, 105 N. W. 385, 3 L. R. A. (N. S.) 455, 113 Am. St. 452; Middleton v. Commonwealth, 136 Ky. 354, 124 S. W, 355 ; State v. Guidor, 113 La. 727, 37 So. 622; State V. Howard, 127 La. 435, 53 So. 677; People V. Hilliard, 119 Mich. 24, 77 N. W. 306; Wheeler v. State, 76 Miss. 265, 24 So. 310; State v, Rollins, 226 Mo. 524, 126 S. W. 478 ; State v. Nord, 230 Mo. 655, 132 S. W. 239 ; State v. Hicks, 130 N. Car. 705, 41 S. E. 803 ; Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; State v. Miller, 43 Ore. 325, 74 Pac. 658; Commonwealth v. Danz, 211 Pa. 507, 60 Atl. 1070; State V. Waldrop, 73 S. Car. 69, 52 S. E. 793; Cooper v. State, 123 Tenn. 37, 138 S. W. 826; Woodland v. State, 57 Tex. Cr. 352, 123 S. W. 141 ; John- son V. State, 59 Tex. Cr. 263, 128 S. W. 614; Powell v. State, 60 Tex. Cr. 201, 131 S. W. 590; Jones v. State, 60 Tex. Cr. 426, 132 S. W. 476; Alexan- der V. State, 63 Tex. Cr. 102, 135 S. W. 721; Smith v. State (Tex. Cr.), 148 S. W. 699; Corley v. State (Tex. Cr.), 155 S. W. 227; State v, Gordon, 28 Utah IS, 176 Pac. 882; Johnson v. Commonwealth, 102 Va. 927, 46 S. E. 789; State v. Sheppard, 49 W. Va. 125 PERTINENCY. §84 however slight,'* or inconsistent.*^ Under this rule it is improper to instruct on circumstantial evi- dence where all the evidence is direct and not circumstantial.*" So where there is an entire absence of evidence on the subject the court may not instruct on such matters, among other things, as the credibility of witnesses,*^ alibis,*^ confessions,*' insan- S82, 39 S. E. 676. Court should not instruct that rape was committed by threats or fraud where there was no pretense that it was so committed. Reyna v. State (Tex. Cr.), 7S S. W. 25. Instruction that defendant, a boy under fourteen years of age, by rea- son of his intelligence was capable of crime was erroneous, where there was no evidence on which to base it. State V. Tice, 90 Mo. 112, 2 S. W. 269. "Ward V. State, 51 Fla. 133, 40 So. 177; Harris v. State, 155 Ind. 265, 58 N. E. 75; State v. Gallamore, 83 Kans. 412, 111 Pac. 472; Holmes v. State, 124 Wis. 133, 102 N. W. 321. ™ Hayes v. State (Tex. Cr.), 39 S. W. 106. "Wilson V. State, 128 Ala. 17, 29 So. 569; Bailey v. State, 168 Ala. 4, S3 So. 296; State v. Gordon, 115 La. 571, 39 So. 625; State v. Soper, 148 Mo. 217, 49 S. W. 1007; State v. Dip- ley (Mo.), 117 S. W. Ill; Caraarillo V. State (Tex. Cr.), 68 S. W. 795; Bass V. State, 59 Tex. Cr. 186, 127 S. W. 1020; State v. Cook, 69 W. Va. 717, 72 S. E. 1025. It was proper to omit instructions on circumstantial evidence in a larceny case where ac- cused relied on a claim of ownership. Smith V. State (Tex. Cr.), 136 S. W. 481. No error to refuse instructions on circumstantial evidence, where the circumstances show'n were merely cor- roborative of direct proof of guilt. State V. Link, 87 Kans. 738, 125 Pac. 70. Where there is direct evidence that defendant committed the crime charged it is not error to refuse a charge assuming that a conviction must necessarily be based on circum- stantial evidence. People v. Clark, 145 Cal. 727, 79 Pac. 434. *^Nabors v. State, 120 Ala. 323, 25 So. 529; People v. Ward, 134 Cal. 301, 66 Pac. 372; Johnson v. People, 197 111. 48, 64 N. E. 286. " Morris v. State, 124 Ala. 44, 27 So. 336; Johnson v. State (Tex. Cr.), 58 S. W. 105. « Knight V. State, 114 Ga. 48, 39 S. E. 928, 88 Am. St. 17; Owens v. State, 120 Ga. 296, 48 S. E. 21 ; Fox V. State (Tex. Cr.), 87 S. W. 157. Where there is positive testimony of the robbery alleged it is not error to refuse to charge that defendant may not be convicted on his confession alone. Murphy v. State, 43 Tex. Cr. 515, 67 S. W. 108. Where there was no evidence that confession was in- voluntary not necessary to instruct that confession is not to be considered unless the jury believe that it was made voluntarily. Bailey v. State, 42 Tex. Cr. 289, 59 S. W. 900. Where in addition to the confession of the accused there is other evidence of guilt there is no error in a refusal to charge that a confession alone is not sufficient proof of guilt. Franks V. State (Tex. Cr.), 45 S. W. 1013. Where the state relied on the confes- sion of accused and on circumstances showing an opportunity to commit the crime charged, and accused relied §84 INSTRUCTIONS RULES. 126 ity/* flight/' accessories after the fact/" conspiracy,*' and the hke. No instructions should be given on theories not based on evidence,*^ or on accompHce testimony where no accomplice has testified/" or on the presumption of good character of. accused on an alibi, instructions on circum- stantial evidence, though correct as abstract propositions were properly refused. State v. West, 152 N. Car. 832, 68 S. E. 14. "Stokes V. State (Tex. Cr.), 70 S. W. 95. No instruction on insanity where there is merely evidence of weak mind. Griffith v. State, 47 Tex. Cr. 64, 78 S. W. 347. A refusal to charge the law covering the defense of insanity is not error where there was no evidence of accused tending to show that he was insane at the time of the commission of the offense. State v. Gruber, 19 Idaho 692, 115 Pac. 1. '= Jones V. State, 123 Ga. 129, 51 S. E. 312. Instruction on flight justi- fied where evidence connected defend- ant with theft and he left the state three days thereafter and did not return until brought back under ar- rest. State v. Alley, 149 Iowa 196, 128 N. W. 343. An instruction that flight is a fact which the jury could con- sider in determining guilt was de- fective where it failed to advise the jury to consider other facts, where there was evidence of other reasons than fear of arrest causing the de- fendant to flee. State v. Hogg, 64 Ore. 57, 129 Pac. 115. Where the evidence as to the defendant's guilt was conflicting, and no clear motive for the crime was shown, an instruc- tion that flight by defendant was a circumstance to be considered against him, but which left out of view de- fendant's explanation of such flight, was erroneous. State v. Harris, 232 Mo. 317, 134 S. W. 535. "State V. DeWolfe, 29 Mont. 415, 74 Pac. 1084. "Humphrey v. State, 74 Ark. 554, 86 S. W. 431; Bossie v. Common- wealth, 13 Ky. L. 217, 16 S. W. 713; State V. Potter, 134 N. Car. 719, 47 S. E. 1. Where the evidence on a trial for homicide showed the exist- ence of a conspiracy between the ac- cused and his son to murder the de- cedent an instruction was properly refused which ignored the theory of a conspiracy. Morris v. State, 146 Ala. 66, 41 So. 274. Where in a prosecution for murder it is admit- ted that the accused inflicted the fatal wound there is no error in the failure to give an instruction defining con- spiracy, notwithstanding that the in- dictment charges conspiracy, for the question of conspiracy in such a case is not material. Ross v. Common- wealth, 24 Ky. L. 1621, 59 S. W. 28. "Wolfe V. State, 121 Ga. 587, 49 S. E. 688; Taylor v. State, 138 Ga. 826, 76 S. E. 347; State v. Mullen, 151 Iowa 392, 131 N. W. 679, Ann. Cas. 1913 A, 399; Anderson v. Common- wealth, 144 Ky. 215, 137 S. W. 1063; People V. Cummins, 47 Mich. 334, 11 N. W. 184; State v. Swain, 239 Mo. 723, 144 S. W. 427; People v. Tir- nauer, 11 Misc. 387, 136 N. Y. S. 833; Commonwealth v. Calhoun, 238 Pa. 474, 86 Atl. 472; W^ash v. State (Tex. Cr.), 47 S. W. 469; Taylor v. State, 62 Tex. Cr. 611, 138 S. W. 615. "People V. Ward, 134 Cal. 301, 66 Pac. 372; Walker v. State, 118 Ga. 34, 44 S. E. 850; State v. Burns, 27 Nev. 289, 74 Pac. 983 ; Gracy v. State, 57 Tex. Cr. 68, 121 S. W. 705. No 127 PERTINENCY. §85 where his character is not attacked, and there is no evidence on this issue/" or on the probative value of the uncorroborated evi- dence of prosecutrix where there was no such evidence.''^ The court may state facts agreed on by witnesses for the state and for the accused/^ The instruction must in all cases be applied to the evidence, for a correct instruction may amount to error where it leaves the jury in doubt as to how it should be applied to the evidence."' § 85. Abstract instructions. An abstract proposition having no application to the issues before the jury should not be given as an instruction, though correct in principle, for its tendency is to confuse and mis- lead,°* but such an instruction will not ordinarily warrant a error in refusing to instruct on law applicable to accomplices where the evidence failed to show that the al- leged accomplice aided, abetted or en- couraged defendant. Maggard v. State (Olda. Cr.), 131 Pac. 549. ■"Mixon V. State, 123 Ga. 581, 51 S. E. 580, 107 Am. St. 149; Williams V. People, 166 111. 132, 46 N. E. 749; State V. Gartrell, 171 Mo. 489, 71 S. W. 1045; People v. Lingley, 207 N. Y. 396, 101 N. E. 170, Ann. Cas. 1913 D, 403. Where the defendant intro- duces evidence of good character it is error for the court to charge the jury that they should draw no unfa- vorable inference from the defend- ant from the fact that she offered no proof as to her good character. State V. Marks, 16 Utah 204, 51 Pac. 1089. " People V. Currie, 16 Cal. App. 731, 117 Pac. 941. See also People V. Smith, 13 Cal. App. 627, 110 Pac. 333. ''State V. Johnson, 66 S. Car. 23, 44 S. E. 58. °' Davis V. State, 152 Ind. 34, 51 N. E. 928, 71 Am. St. 322. "Montgomery-Moore Mfg. Co. v. Leeth, 162 Ala. 246, 50 So. 210 ; Rob- inson V. Crotwell, 175 Ala. 194, 57 So. 23; Warren Vehicle Stock Co. v. Siggs, 91 Ark. 102, 120 S. W. 412; Southern Anthracite Coal Co. v. Bow- en, 93 Ark. 140, 124 S. W. 1048; Hel- ena Gas Co. V. Rogers, 104 Ark. 59, 147 S. W. 473; Farmers' Banking Co. V. Key, 112 Ga. 301, 37 S. E. 447; Conant v. Jones, 120 Ga. 568, 48 S. E. 234; Mayer v. Gersbacher, 207 111. 296, 69 N. E. 789; Asmossen v. Swift, 243 111. 93, 90 N. E. 250; Diefenthaler V. Hall, 116 111. App. 422; James v. Conklin, 158 111. App. 640 ; Musselman V. Pratt, 44 Ind. 126 ; Salem v. Guller, "K) Ind. 291; State v. Menlicott, 9 Kans. 257, 12 Am. Rep. 494 ; Meyer v. Reimer, 65 Kans. 822, 70 Pac. 869; Louisville v. Uebelhor, 142 Ky. 151. 134 S. W. 152; Jones v. Mechanics' Bank, 8 Gill (Md.) 123; Mutual Life Ins. Co. V. Murray, 111 Md. 600, 75 Atl. 348; Howes v, Crush, 131 Mass. 207: Merrick v. Betts, 214 Mass. 223, 101 N. E. 131; Mosaic Tile Co. v. Chiera, 133 Mich. 497, 95 N. W. 537 ; Fors V. Fors, 159 Mich. 156, 123 N. W. 579; Grigsby v. Fullerton, 57 Mo. 309; Edwards v. Lee, 147 Mo. App. 38, 126 S. W. 194; Smith v. Bank of § 85 INSTRUCTIONS RULES. I28 reversal unless the instruction has misled the jury to the prejudice of the complaining party/^ Whether an instruction is abstract must be determined by ref- erence to the evidence and to the instructions as a whole/° A charge based on credible evidence is not abstract. °^ In a suit for the conversion of a note, an instruction regarding the effect and operation of an agreement for extension and the materiality of the consideration was properly refused where there was no ques- tion in the case to which the instruction could be apphed.°* So, while an instruction that "where baggage is injured, it is the duty of the passenger after the baggage is delivered to him to do all he can to lessen the damage and if he fails to do so and by reason of such failure the damage is increased, then for this the railroad company is not to be held responsible," was a correct proposition of law, it was held that there was no error in refus- ing it where it had no application to the established facts of the case.^' And in an action against a city for personal injuries al- leged to have been sustained by falling from a sidewalk into an unguarded excavation, where there was no issue of wilful negli- gence and no evidence to support such a claim, it was held erro- neous to instruct that "when the negligence of the defendant is New England, 72 N. H. 4, 54 Atl. dence. Mitchell v. Des Moines City 38S; Mehkanyies v. New Jersey St. R. Co. (Iowa), 141 N. W. 43. R. Co. (N. J.), 52 Atl. 280; Priebe v. "'Marbury Lumber Co. v. West- Kellogg Bridge Co., Tl N. Y. 597; brook, 121 Ala. 179, 25 So. 914, 11 Pacific Export Lumber Co. v. North Am. St. 46; Taylor v. Felsing, 164 Pac. Lumber Co., 46 Ore. 194, 80 Pac. 111. 331, 45 N. E. 161 ; Neuman v. 105; Harzburg v. Southern R. Co., Neuman, 147 111. App. 218; Forney 65 S. Car. 539, 44 S. E. 75; Prentice v. Schlachter, 168 111. App. 295; V. Security Ins. Co. (Tex. Civ. App.), Hemphill v. Kansas City, 100 Mo. 153 S. W. 925 ; Smith v. Clark, Zl App. 563. Utah, 116, 106 Pac. 653, 26 L. R. A. ™Cook v. Danaher Lumber Co., 61 (N. S.) 953, Ann. Cas. 1912 B, 1366; Wash. 118, 112 Pac. 245. Shenandoah Valley R. Co. v. Moose, "Jacksonville Elec. Co. v. Cub- 83 Va. 827, 3 S. E. 796; Claiborne v. bage, 58 Fla. 287, 51 So. 139; Eaton Chesapeake &c. R. Co., 46 W. Va. v. Marion County Coal Co., 173 111. 363, 33 S. E. 262. Instructions should App. 444. not announce abstract principles of "'Hide &c. Nat Bank v. Alexander, law, but should state the law correctly 184 111. 416, 56 N. E. 809. and in such a way as to guide the ""Harzburg v. Southern R. Co., 65 jury to consider the facts in evi- S. Car. 539, 44 S. E. 75. 129 PERTINENCY. §86 so gross as to imply a disregard for consequences, or a willing- ness to inflict the injury, the plaintiff may recover, though he be a trespasser or did not use ordinary care to avoid the injury.""" § 86. Abstract instructions in criminal prosecutions. In criminal prosecutions an abstract charge should not be given though it assert a correct legal proposition,"^ and such an instruction may work a reversal where it misleads the jury to the prejudice of the defendant."^ The character of abstract attaches to instructions given over to the rights of society and the enforcement of the criminal laws,"^ and to instructions which recite abstract propositions of law quoted from text-books without indicating to what class of evidence in the case they apply."* An instruction was held ab- stract which said that the mere possession of any article, whether it can or can not be used in the perpetration of a crime, is not of itself sufficient to convict accused but is merely a circumstance for the consideration of the jury."° But an instruction in the "Salem v. Goller, 16 Ind. 291. " Montgomery v. State, 160 Ala. 7, 49 So. 902; People v. Buckley, 143 Cal. 375, n Pac. 169; Greer v. Com- monwealth, 111 Ky. 93, 63 S. W. 443, 98 Am. St. 399 ; Robinson v. Common- wealth, 149 Ky. 291, 148 S. W. 45; State V. Holmes, 239 Mo. 469, 144 S. W. 417; State v. Trosper, 41 Mont. 442, 109 Pac. 858; Stewart v. State (Tex. Cr.), 77 S.W. 791. In a prose- cution for murder committed in an attempt to fescjipe from a penitentiary, an instruction was abstract which •charged that an attempt to escape from a penitentiary was not a felony. Miller V. State, 145 Ala. 611, 40 So. 47. "^ Beck V. State, 80 Ala. 1. "^ State V. Rouk, 91 Minn. 419, 98 N. W. 334. An instruction was ab- stract which contained a general dis- sertation on the rights of accused to life and liberty, the duties of jurors, 9— Branson's Inst. and the importance of convicting the guilty, informing the jury as to the method by which they were chosen, the reason why they were impaneled, and that they were selected as intelli- gent and qualified jurors. People v. Davidson, 240 111. 191, 88 N. E. 565. An instruction was properly refused as abstract and argumentative which told the jury that it was for them to say whether the same punishment should be inflicted on the defendant who had taken the life of a turbulent, revengeful, bloodthirsty, dangerous man who had recently, only a few hours before, violated and outraged the person of defendant as though the deceased had been a man of good character and peaceable disposition. Harrison v. State (Ala.), 40 So. 57. " State v. Prater, 52 W. Va. 132, 43 S. E. 230. ""People v. Weber, 149 Cal. 325, 86 Pac. 671. 87 INSTRUCTIONS RULES. 130 language of the statute under which an indictment was found is not objectionable as abstract and not based on the evidence.^® And so it has been held that a requested charge was not abstract where the facts hypothesized therein had been testified to by the defendant." § 87. Ignoring issues. The charge must cover all the material issues in the case and reversible error is committed where some of such issues are ignored."^ It is incumbent upon the court, in undertaking to state the claims of the parties, to give the contentions on every substantial issue,**' but not on abandoned issues.^" Instructions must be "'White V. People, 179 111. 356, 53 N. E. 570, 70 Am. St. 120. "'Dial V. State (Ala.), 40 So. 230. »= Sloss-Sheffield Steel &c. Co. v. Smith (Ala.), 40 So. 91; R. D. Bur- nett Cigar Co. V. Art Wall Paper Co., 164 Ala. 547, 51 So. 263; Sloss- Sheffield Steel &c. Co. v. Smith, 166 Ala. 437, 52 So. 38; Bayles v. Daugh- erty, 77 Ark. 201, 91 S. W. 304; Denver &c. R. Co. v. lies, 25 Colo. 19, 53 Pac. 222, 71 Am. St. 106; Costly V. McGowan, 174 III. 76, 50 N. E. 1047; Hill v. Dougherty, 161 111. App. 461; Flennor v. Cleveland &c. R. Co., 163 111. App. 536; Faust V. Hosford, 119 Iowa 97, 93 N. W. 58; Rogers v. French, 214 Mass. 337, 101 N. E. 988; Commercial Bank v. Chat- field, 121 Mich. 641, 80 N. W. 712; Piowaty v. Sheldon, 167 Mich. 218, 132 N. W. 517, Ann. Cas. 1913 A, 610; Ern V. Rubinstein, 72 Mo. App. 337; Beggs v. Shelton (Mo. App.), 155 S. W. 885; Globe Oil Co. v. Powell, 56 Nebr. 463, 76 N. W. 1081; Leonard V. Brooklyn Heights R. Co., 57 App. Div. 125, 67 N. Y. S. 985; Buhl Mal- leable Co. V. Cronan, 59 Ore. 242, 117 Pac. 317, Ann. Cas. 1913 C, 93 ; Ken- nedy V. Forest Oil Co., 199 Pa. 644, 49 Atl. 133 ; Leiter v. Lyons, 24 R. I. 42, 52 Atl. 78; Lancaster v. Lee, 71 S. Car. 280, 51 S. E. 139; Norfolk &c. R. Co. V. Mann, 99 Va. 180, 37 S. E. 849; Atlantic Coast Line R. Co. v. Caple, 110 Va. 514, 66 S. E. 855; Riverside Land Co. v. Pietsch, 35 Wash. 210, 77 Pac. 195, 66 L. R. A. ^2. Instruction which ignores an admission in the pleadings is properly refused. Mutual Life Ins. Co. v. Summers, 19 Wyo. 441, 120 Pac. 185. Instructions are erroneous which tend to limit the recovery to part only of the counts in 'the complaint. Pratt- ville Cotton Mills Co. v. McKinney (Ala.), 59 So. 498. An instruction undertaking to state what is neces- sary to maintain an action or defense must be complete and correct. New V. Jackson, 50 Ind. App. 120, 95 N. E. 328. ""Freeman v. Nashville &c. R. Co., 120 Ga. 469, 47 S. E. 931; Laughlin V. Gerardi, 67 Mo. App. 372; Miller V. Missouri &c. Tel. Co., 141 Mo. App. 462, 126 S. W. 187. '"Carney v. Anheuser-Busch Brew- ing Assn., 150 Mo. App. 437, 131 S. W. 165. 131 PERTINENCY. § 87 broad enough to present all material phases of the issue to which they relate, — for they are the instructions of the court, by whom- soever they are prepared, — and if they obviously tend to mis- lead the jury by their narrowness, though correct as to one or more phases of the case, they are erroneous.''^ An instruction on a particular branch of a cause should not ignore any of the ele- ments which enter into its proper determination." In an action of ejectment where there is a claim of adverse possession, a charge ignoring this feature is rightly refused." And where a plea of set-off is interposed and evidence is given thereunder, the jury should be permitted to consider this defense.'* So also where the defendant's answer is in the nature of a plea in abate- ment, and there is evidence tending to support it, the court errs in ignoring the issue and giving no instruction with reference thereto.''^ An instruction that an employe assumed the risk where he knew that cogs on machinery were open and dangerous was properly refused as ignoring an issue of promise to repair which had support in the evidence. ''* But where a correct in- struction has been given at the request of either of the parties, the fact that the court subsequently ignores the issue in charging of its own motion will not constitute error.'' And where an instruction does not attempt to cover the entire case and a right of recovery is not based upon it, no objection can arise from the mere fact that it omits an issue or a point in the case, for the instructions are all to be considered together.'* "Mylius V. Raine- Andrew Lumber rectly states the law applicable to its Co., 69 W. Va. 346, 71 S. E. 404. An sphere. Harold v. Bisson (Ind. instruction properly refused which App.), 93 N. E. 1093. ignores the theory of recovery sup- '" Pearson v. Adams, 129 Ala. 157, ported by a good count of the dec- 29 So. 977. laration. Swanson v. Chicago City R. '* Colwell v. Brown, 103 111. App. 22. Co., 148 111. App. 13S. Instructions " Steele v. Crabtree, 130 Iowa 313, which ignore the direct and vital 106 N. W. 753, S L. R. A. (N. S.) issue in a case are erroneous though 725. they cover subsidiary and inconclusive " A. L. Clark Lumber Co. v. Johns, issues. Mylius v. Raine-Andrew Lum- 98 Ark. 211, 135 S. W. 892, 36 L. R. ber Co., 69 W. Va. 346, 71 S. E. 404. A. (N. S.) 1194. " Coburn v. Moline &c. R. Co., 149 " Minden v. Vedene, 72 Nebr. 657, HI. App. 132. A single instruction 101 N. W. 330. need not give all the law applicable "Norton v. Kramer, 180 Mo. 536, to the case, but is sufficient if it cor- 79 S. W. 699. 8 ba INSTRUCTIONS RULES. I32 § 88. Ignoring evidence. The jury have the right to weigh all the evidence relevant to the issues and the court should not give instructions which are based upon a part only of the material evidential facts.'* A charge must not call special attention to a part only of the evidence and the fact which it tends to prove, and disregard other evidence relative to other matter in issue. The jury should be left free to consider the evidence in its entirety.*" Hence in- structions are erroneous where they have a tendency to confine the jury to particular portions of the evidence, to the exclusion of other material facts,*^ or where they direct attention to a part of the evidence and the fact which it tends to establish, and ig- nore other relevant and material evidence.*^ It is not error to omit an instruction concerning a fact not in dispute.*^ § 89. Setting out evidence to support verdict. Where an instruction sets out a particular state of facts and directs a verdict, in the event of a finding of such facts, it must include every fact, not conclusively established, which is essential for such a verdict.** Notwithstanding that all the hypothetical facts given in an instruction may be true, still if material evidence is disregarded, " Elliott V. Howison, 146 Ala. 568, Richmond Woodworking Co., 109 Va. 40 So. 1018; Berliner v. Travelers' /'24, 65 S. E. 659, 132 Am. St. 937. Ins. Co., 121 Cal. 451, 53 Pac. 922; " Mobile Light &c. R. Co. v. Walsh, Chicago Hydraulic Press Brick Co. 146 Ala. 290, 40 So. 559, 8 L. R. A. V. Campbell, 116 III. App. 322; Al- (N. S.) 987; Blunt v. Ashurst, 14111. schuler v. Anderson, 142 111. App. App. (14 Bradw.) 385; Chappell v. 323; Dolphin v. Plumley, 175 Mass. Allen, 38 Mo. 213. 304, 56 N. E. 281 ; Fitzgerald v. Hay- '' Haney v. Breeden, 100 Va. 781, ward, 50 Mo. 516; Blackmore v. El- 42 S. E. 916. lis, 70 N. J. L. 264, 57 Atl. 1047; Gulf "^ Neumann v. Neumann, 147 111. &c. R. Co. V. Warner, 22 Tex. Civ. App. 218. App. 167, 54 S. W. 1064; Haney v. "'McNulta v. Jenkins, 91 111. App. Breeden, 100 Va. 781, 42 S. E. 916; 309; Thomas v. Babb, 45 Mo. 384; Robinson v. Lowe, 50 W. Va. 75, 40 Standard Distilling &c. Co. v. Harris, S. E. 454. 75 Nebr. 480, 106 N. W. 582; Murphy '"Alabama &c. Wire Co. v. Thomp- v. Hood, 12 Okla. 593, 73 Pac. 261; son, 166 Ala. 460, 52 So. 75; Lucks v. Hughes v. Kelly (Va.), 30 S. E. 387; Northwestern Sav. Bank, 148 Mo. Claiborne v. Chesapeake &c. R. Co., App. 376, 128 S. W. 19 ; Strause v. 46 W. Va. 363, 33 S. E. 262. 133 PERTINENCY. § 90 the instruction should be refused.*' Thus where an instruction authorizes the jury to find for the plaintiff without regard to a certain fact which is a prerequisite to recovery, error is com- mitted.*" So where contributory negligence is interposed as a defense and there is evidence tending to sustain it, a directory hypothetical instruction omitting any reference to facts bearing upon this question will be erroneous.*^ So also in an action against a street railway company for a wrongful death, an in- struction that "if the jury believe from the evidence that the defendant's servants exercised, at the time and place in question, ordinary care to avoid injuring the plaintiff's intestate, but that nevertheless the deceased was injured, then they should find the defendant not guilty" was held to be rightly refused, since the declaration charged, and the evidence tended to prove, negligence not only in the operation of the car, but also in the company's failure to equip the car with a fender as required by city ordi- nance, and one important feature of the evidence therefore was disregarded.** § 90. Ignoring issues and evidence in criminal prosecutions. In criminal prosecutions instructions applicable to every state of case deducible from the testimony or supported by it to any extent should be given to the jury.*" "Hughes V. Kelly (Va.), 30 S. E. A charge may ignore proof of venue 387. in a prosecution only where there °° Birtwhistle v. Woodward, 95 Mo. has been no proof of a venue. Rags- 113, 7 S. W. 46S. dale v. State, 134 Ala. 24, 32 So. 674. " McCreery's Admx. v. Ohio River Proper to refuse request constituting R. Co., 43 W. Va. 110, 27 S. E. 327. a mere argument in favor of defend- ^ Chicago City R. Co. v. O'Donnell, ant based on part of the testimony. 114 111. App. 359. Steele v. State, 168 Ala. 25, 52 So. " Krittenden v. State, 134 Ala. 145, 907. Requested charges requiring the 32 So. 273; Morris v. State, 146 Ala. court to single out certain evidence 66, 41 So. 274; Mims v. State, 42 and by a process of reasoning elimi- Fla. 199, 27 So. 865 ; Agee v. Com- nate it from the consideration of the monwealth, 9 Ky. L. 272, 5 S. W. 47 ; jury, properly refused. Lemons v. Commonwealth v. Este, 140 Mass. State, 59 Tex. Cr. 299, 128 S. W. 416. 279, 2 N. E. 769; Commonwealth v. A charge that unless the confession Gavin, 148 Mass. 449, 18 N. E. 675. of the defendant tends to corroborate 90 INSTRUCTIONS RULES. 134 The rule is very clearly violated by instructions which ignore or obscure the testimony of witnesses for either side.'" So an instruction on flight of accused was erroneous which ignored evi- dence that accused fled to escape mob violence."^ So there should be an instruction on honest acquisition where there is evidence on a prosecution for theft which tends to establish an honest acquisi- tion of the article by the accused.'^ So it was proper to refuse an instruction which required an acquittal upon a reasonable doubt resting solely upon a part of the evidence.^^ A court may ignore a defective count of an indictment in his charge and charge on the valid counts alone.'* the testimony of his accomplice he should be acquitted, was properly re- fused since it ignored other corrobo- rating evidence. Crittenden v. State, 134 Ala. 145, 32 So. 273. °°Suther v. State, 118 Ala. 88, 24 So. 43; People v. Lonnen, 139 Cal. 634, IZ Pac. 586. " State V. Schnulbach, 243 Mo. 533, 147 S. W. 966. ""^Hall V. State, 120 Ga. 142, 47 S. E. 519; Beckham v. State, 8 Tex. App. 52; Parker v. State (Tex. Cr.), 57 S. W. 668. "'Liner v. State, 124 Ala. 1, 27 So. 438; Bardui v. State, 143 Ala. 74, 38 So. 833. An instruction for acquittal was properly refused where it was predicated upon an isolated fact or only part of the evidence that was not conclusive of the merits of the case. Kennard v. State, 42 Fla. 581, 28 So. 858. ■"Butler V. State (Tex. Cr.), 43 S. W. 992. But see Shelton v. State, 143 Ala. 98, 39 So. 377. CHAPTER VI. INTERPRETATION AND EFFECT. Section Section 91. Construction with reference to is- 93. Cure of erroneous instruction by sues, evidence and other in- correct instruction. structions. 94. Cure of ambiguous instruction by 92. Construction of charge as an en- another instruction. tirety. 95. Cure by withdrawal of erroneous instruction. § 91. Construction with reference to issues, evidence and other instructions. An instruction should be considered with reference to the issues,^ and the evidence pertinent to such issues," as well as all the other instructions. The charge must be viewed from the standpoint of the jury,' and its language must be given the plain common-sense meaning it was evidently intended to convey.* An instruction that a party 'Empire Life Ins. Co. v. Gee, 171 Ann. Cas. 1913 E, 693; Wheeler v. Ala. 435, 55 So. 166; Higdon v. Fields, Hotel Stevens Co., 71 Wash. 142, 127 6 Ala. App. 281, 60 So. 594; Hart v. Pac. 840. Instruction must always Cedar Rapids &c. R. Co., 109 Iowa be construed in the light of the evi- 631, 80 N. W. 662, 11 Am. St. 557; dence and the particular case, and if Richmond Granite Co. v. Bailey, 92 it applies to that it will not be held Va. 554, 24 S. E. 232; Neumann v. erroneous, though conditions may be LaCrosse,*94 Wis. 103, 68 N. W. 654. conceived where it would be incor- "^ Southern Pac. Co. v. Hall, 100 rect. Harkins v. Seattle Elec. Co., Fed. 760, 49 L. R. A. 11; Hall v. Mc- 53 Wash. 184, 101 Pac. 836. Kinnon, 193 Fed. 572; Meighan v. * Texas &c. R. Co. v. Jones (Tex. Birmingham Terminal Co., 165 Ala. Civ. App.), 123 S. W. 434. An in- 591, 51 So. 775; Central of Georgia struction should be construed in the R. Co. V. Chicago Varnish Co., 169 sense in which it would likely be un- Ala. 287, S3 So. 832; Yeager v. Chi- derstood by the jury in the light of cago &c. R. Co., 148 Iowa 231, 123 the evidence. Bickel v. Martin, 115 N. W. 974, Ann. Cas. 1912 B, 1025; 111. App. 367. Wyandotte v. White, 13 Kans. 191; * St. Louis &c. R. Co. v. Ault, 101 Penn v. Standard Life Ins. Co., 160 Miss. 341, 58 So. 102; Orange Lum- N. Car. 399, 76 S. E. 262, 42 L. R. A. ber Co. v. Ellis, 105 Tex. 363, ISO S. (N. S.) 597; Williams Printing Co. W. 582. Instructions should be taken V. Saunders, 113 Va. 156, 73 S. E. 472, in the sense in which they would be 135 3 92 INSTRUCTIONS RULES. 136 is entitled to recover if he has proved his case as laid in the peti- tion is an implied adjudication that the petition states a cause of action.*" It has been held that an instruction permitting a recov- ery under the declaration should be construed to mean so much of the declaration as was not excluded by the court.* § 92. Construction of charge as an entirety. The charge should be construed in its entirety.^ A part of an instruction may not be taken from its context nor may a single instruction be separated from other instructions given, but they must be construed with reference to the entire charge. The charge is construed in its entirety and not by frag- ments and isolated phrases and expressions, and, where so con- sidered as a whole and the law is correctly applied to the facts, technical errors and minor inaccuracies should be disregarded where they have no tendency to influence or mislead the jury.* understood by men of ordinary intel- ligence. Kingan v. King (Ind.), 100 N. E. 1044. ° Rountree v. Craigrailes (Ga. App.), n s. E. IS. "Aetitis V. Spring Val. Coal Co., ISO 111. App. 497. ' First Nat. Bank v. Shank, S3 Colo. 446, 128 Pac. 56; Blackman v. Edsall, 17 Colo. App. 429, 68 Pac. 790; Baker V. Baker, 202 111. S9S, 67 N. E. 410; Robinson v. Shanks, 118 Ind. 12S, 20 N. E. 713; John V. Farwell Co. v. Thomas, 8 Kans. App. 614, 56 Pac. 151 ; Paducah Commission Co. v. Bos- well, 26 Ky. L. 1062, 83 S. W. 144; Eggleston v. Boardman, 37 Mich. 14; Wagner v. Herkimer, 167 Mich. 587, 133 N. W. 623; Godfrey v. Meridian R. &c. Co., 101 Miss. 565, 58 So. 534; McKinstry v. St. Louis Trans. Co., 108 Mo. App. 12, 82 S. W. 1108; Chi- cago &c. R. Co. V. Oyster, 58 Nebr. 1, 78 N. W. 359;.Whelan v. Union Pac. R. Co., 91 Nebr. 238, 136 N. W. 20; Scutt V. Woolsey, 20 App. Div. 541. 47 N. Y. S. 320; Everett v. Spen- cer, 122 N. Car. 1010, 30 S. E. 334; Wadhams v. Inman & Co., 38 Ore. 143, 63 Pac. 11; Renn v. Tallman, 25 Pa. Super. Ct. 503; Willoughby v. Northeastern R. Co., 52 S. Car. 166, 29 S. E. 629; Cromeenes v. San Pe- dro &c. R. Co., 37 Utah 475, 109 Pac. 10, Ann. Cas. 1912 C, 307; Virginia Portland Cement Co. v. Luck, 103 Va. 427, 49 S. E. 577 ; Chesapeake &c. R. Co. V. McCarthy, 114 Va. 181, 1(> S. E. 319; Bell v. Spokane, 30 Wash. 508, 71 Pac. 31 ; jNIorran v. Chicago &c. R. Co., 70 Wash. 114, 126 Pac. 11.. 'Birmingham &c. R. Co. v. Jung, 161 Ala. 461, 49 So. 434; Shaw v. Cleveland, 5 Ala. App. 333, 59 So. 534; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048; Western Union Tel. Co. v. Gillis, 97 Ark. 226, 133 S. W. 833; Anderson v. Seropian, 147 Cal. 201, 81 Pac. 521 ; Ergo v. Merced Falls Gas &c. Co., 161 Cal. 334, 119 Pac. 101, 41 L. R. A. (N. S.) 79; Davis v. Shepherd, 31 Colo. 141, 72 Pac. 57, 62 L. R. A. 555, 102 Am. St. 23; Colorado Springs v. ^Z7 INTERPRETATION AND EFFECT. The instructions are regarded as a series and the omissions of one may be supplied by the contents of another given by the court in the main charge," or in an instruction given at the in- May, 20 Colo. App. 204, 77 Pac. 1093 ; Benedict v. Everard, 72 Conn. 157, 46 Atl. 870; Hartford Fire Ins. Co. V. Brown, 60 Fla. 83, S3 So. 838; Au- gusta V. Tharpe, 113 Ga. 152, 38 S. E. 389; Standard Cotton Mills v. Cheat- ham, 125 Ga. 649, 54 S. E. 650; Chi- cago Union Trac. Co. v. Hanthorn, 211 111. 367, 71 N. E. 1022; Oolitic Stone Co. V. Ridge, 174 Ind. 558, 91 N. E. 944; American Car &c. Co. v. Adams, 178 Ind. 607, 99 N. E. 993 ; Mitchell v. Pinckney, 127 Iowa 696, 104 N. W. 286; Gipe v. Lynch, 155 Iowa 627, 136 N. W. 714; Sweeney v. Merrill, 38 Kans. 216, 16 Pac. 454, 5 Am. St. 734; Atchison v. Acheson, 9 Kans. App. 33, 57 Pac. 248; Johnson v. Peak, 20 Ky. L. 1937, 50 S. W. 682; Lambeth Rope Co. V. Brigham, 170 Mass. 518, 49 N. E. 1022 ; Savagean v. Boston &c. R. Co., 210 Mass. 164, 96 N. E. 67, 26 L. R. A. (N. S.) 406, Ann. Cas. 1912 C, 1147; Provost v. Brueck, 110 Mich. 136, 67 N. W. 1114; Frolich v. Independent Glass Co., 173 Mich. 428, 139 N. W. 5; Fruit Dispatch Co. v. Murphy, 90 Minn. 286, 96 N. W. 83 ; Jelos V. Oliver Iron Min. Co., 121 Minn. 473, 141 N. W. 843 ; Clisby v. Mobile &c. R. Co., 78 Miss. 937, 29 So. 913 ; Warren County v. Rand, 88 Miss. 395, 40 So. 481; Chambers v. Chester, 172 Mo. 461, 72 S. W. 904; Kelley v. Kansas City, 153 Mo. App. 484, 133 S. W. 670; Smith v. Meyers, 52 Nebr. 70, 71 N. W. 1006; Bailey v. Kling, 88 Nebr. 699, 130 N. W. 439; Monroe v. Conn. River Lumber Co., 68 N. H. 89, 39 Atl. 1019; Brown v. Spence, 79 N. J. 452, 75 Atl. 154; Zimmer v. Third Avenue R. Co., 36 App. Div. 265, 55 N. Y. S. 308; Hur- ley V. Olcott, 134 App. Div. 631, 119 N. Y. S. 430; Burroughs v. Bur- roughs, 160 N. Car. 515, 76 S. E. 478; In re Big Cold Water Creek Drainage Dist., 162 M. Car. 127, 78 S. E. 14; Gagnier v. Fargo, 12 N. Dak. 219, 96 N. W. 841; Ohio &c. Torpedo Co. v. Fishburn, 61 Ohio St. 608, 56 N. E. 457, 76 Am. St. 437; Karl v. Juniata County, 206 Pa. 633, 56 Atl. 78, 98 Am. St. 799; Alexander v. Carolina Mills, 83 S. Car. 17, 64 S. E. 914; Singletary v. Seaboard Air Line R. Co., 88 S. Car. 565, 71 S. E. 57; Val- ley Mills Cotton Oil Co. v. Brown (Tex. Civ. App.), 141 S. W. 1001; McCornick v. Queen of Sheba Gold Min. &c. Co., 23 Utah 71, 63 Pac. 820 ; Morgan v. Mammoth Min. Co., 26 Utah 174, 72 Pac. 688; Richmond Trac. Co. v. Hildebrand, 98 Va. 22, 34 S. E. 888; Adamson v. Norfolk &c. R. Co., Ill Va. 556, 136 S. E. 1055; Cheichi v. Northern Pac. R. Co., 66 Wash. 26, 118 Pac. 916; Mur- phy v. Chicago &c. R. Co., 66 Wash. 663, 120 Pac. 525; Huffman v. AI- derson's Admr., 9 W. Va. 616; Ken- yon V. Mondovi, 98 Wis. 50, 72 N. W. 314. "Moore v. Aurora &c. R. Co., 246 III. 56, 92 N. E. 573; Coolahan v. Marshall Field & Co., 150 111. App. 466; Angola R. &c. Co. v. Butz (Ind. App.), 98 N. E. 818; Yazoo &c. R. Co. V. Kelly, 98 Miss. 367, S3 So. 779; Carpenter v. Trinity &c. R. Co. (Tex. Civ. App.), 146 S. W. 363. An in- struction which does not direct a ver- dict is not objectionable for omit- ting the law relative to some element if such omission is supplied by other instructions. Winslov/ v. Glendale 92 INSTRUCTIONS RULES. 138 Stance of the opposite party," for it is not demanded that each instruction shall cover all the issues and contain all the law re- lating to the subject treated.^^ The charge is to be construed as a whole where it is claimed that a particular instruction assumes facts/'' or has a misleading tendency/^ The fact that an instruc- tion does not embody limitations on a general doctrine charged therein is immaterial where that matter is considered in other instructions.^* An instruction is not erroneous because it may have failed to give the whole law governing the subject-matter to which it relates provided it states the law correctly so far as it assumes to give it and no erroneous inference can reasonably be drawn from what is omitted.^^ So, the failure of an instruc- tion on contributory negligence to cover the doctrine of last clear chance is not fatal where that doctrine is sufficiently covered by other instructions.^^ But, as will appear in the next section, the rule that instructions must be considered as a whole will not be Light &c. Co., 12 Cal. App. S30, 107 Pac. 1020. The omission of an in- struction may be cured by the con- tents of other instructions given, if the instruction subject to criticism does not assume to direct a verdict. Dukeman v. Cleveland &c. R. Co., 142 111. App. 622. "Moore v. Aurora &c. R. Co., 246 III. 56, 92 N. E. 573. " Pensacola Elec. Co. v. Bissett, 59 Fla. 360, 52 So. 367; Hilton &c. Lumber Co. v. Ingram, 135 Ga. 696, 70 S. E. 234; Grand Trunk Western R. Co. V. Poole, 175 Ind. 567, 93 N. E. 26; Royle Min. Co. v. Fidehty &c. Co., 161 Mo. App. 185, 142 S. W. 438. Where an instruction is sound vi^ithin itself it is not made defective by the fact that the court failed in immediate connection therewith to charge some other principle or rule of law. Southern R. Co. v. Will- iams, 139 Ga. 357, 11 S. E. 153. " Birmingham R. &c. Co. v. Moore, 163 Ala. 43, 50 So. 115. "Just V. Idaho Canal &c. Co., 16 Idaho 639, 102 Pac. 381, 133 Am. St. 140; Wilkinson v. Service, 249 III. 146, 94 N. E. SO, Ann. Cas. 1912 A, 41; Armstrong v. Auburn, 84 Nebr. 842, 122 N. W. 43; St. John v. Cas- cade Lumber &c. Co., 53 Wash. 193, 101 Pac. 833. " Edwards v. Seattle &c. R. Co., 62 Wash, n, 113 Pac. 563, 36 L. R. A. (N. S.) 1155, Ann. Cas. 1912 C, 965. No prejudicial error where inapt defi- nition of contributory negligence fol- lowed by other instructions explain- ing what constituted contributory neg- ligence. Bougner v. Ziegenheim, 165 Mo. App. 328, 147 S. W. 182. The fact that an instruction on negligence did not refer to the issue of contrib- utory negligence did not make it er- roneous where a later instruction charged fully and correctly on con- tributory negligence. Clifford v. Sou- thern R. Co., 87 S. Car. 324, 69 S. E. 513. '" Knight V. State, 70 Ind. 375. "Stein V. United Railroads, 159 Cal. 368, 113 Pac. 663. 139 INTERPRETATION AND EFFECT. §93 applied to cure error in conflicting instructions.^' The rule that a charge is construed as an entirety applies as well to criminal cases.^* A charge is not necessarily erroneous because it gives a wrong reason for a correct legal proposition.^" § 93. Cure of erroneous instruction by correct instruction. An erroneous instruction, clearly prejudicial, can not be cured by another instruction which correctly states the law but does not call the attention of the jury to the erroneous instruction, for the jury can not know which instruction is correct and the court can not know which instruction influ- enced the jury.^" "Southern Anthracite Co. v. Bow- en, 93 Ark. 140, 124 S. W. 1048; Lex- ington &c. R. Co. V. Fields, 152 Ky. 19, 153 S. W. 43. "Walsh V. United States, 174 Fed. 615; McMurphy v. State, 4 Ala. App. 20, 58 So. 748; Reed v. State, 102 Ark. 525, 145 S. W. 206; People v. Akly, 163 Cal. 54, 124 Pac. 718; State V. Cabando, 83 Conn. 160, 76 Atl. 42; Padgett V. State, 64 Fla. 389, 59 So. 946; Helms v. State, 138 Ga. 826, 76 S. E. 353 ; People v. Stranch, 247 111. 220, 93 N. E. 126, 139 Am. St. 319; Welty V. State (Ind.), 100 N. E. 1i; State V. Bell, 146 Iowa 617, 125 N. W. 652; Smith v. Commonwealth, 148 Ky. 60, 146 S. W. 4; Williams v. State, 95 Miss. 671, 49 So. 513; State V. Hall, 228 Mo. 456, 128 S. W. 745; State V. Van, 44 Mont. 374, 120 Pac. 479; Boche v. State, 84 Nebr. 845, 122 N. W. 72; People v. Sanducci, 195 N. Y. 361, 88 N. E. 385 ; State v. Fowler, 151 N. Car. 731, 66 S. E. 567; State V. Finlayson, 22 N. Dak. 233, 133 N. W. 298; State v. Hinton, 56 Ore. 428, 109 Pac. 24; State v. Jones, 90 S. Car. 290, 73 S. E. 177; Pinson v. State (Tex. Civ. App.), 151 S. W. 556; Wright v. Commonwealth, 109 Va. 847, 65 S. E. 19; State v. Wappen- stein, 67 Wash. 502, 121 Pac. 989. '» State V. Garvin, 48 S. Car. 258, 26 S. E. 570; State v. Gushing, 17 Wash. 544, 50 Pac. 512. " St. Louis &c. R. Co. V. Beecher, 65 Ark 64, 44 S. W. 715, 39 L. R. A. 789, 67 Am. St. 900; St. Louis &c. R. Co. V. Thompson-Hailey Co., 79 Ark. 12, 94 S. W. 707; St. Louis &c. R. Co. V. Woods, 96 Ark. 311, 131 S. W. 869, iT, L. R. A. (N. S.) 855; Hodge &c. Const. Co. V. Carson, 100 Ark. 433, 140 S. W. 708; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130; Marianna Hotel Co. v. Livermore Foundry &c. Co. (Ark.), 154 S. W. 952; Alpha Realty &c. Co. v. Ran- dolph, 23 Colo. App. 69, 127 Pac. 245 ; Morris v. Warlick, 118 Ga. 421, 45 S. E. 407; Pardridge v. Cutler, 168 111. 504, 48 N. E. 125 ; Chicago &c. R. Co. v. Keegan, 185 111. 70, 56 N. E. 1088; McCole V. Loehr, 19 Ind. 430; Indi- ana Natural Gas &c. Co. v. Vauble, 31 Ind. App. 370, 68 N. E. 195 ; Ford V. Chicago &c. R. Co., 106 Iowa 85, '93 INSTRUCTIONS RULES. 140 The principle is especially plain in a case where the wrong rule is concretely applied to facts and the right rule abstractly stated.^^ So, the error of an instruction presenting a wrong theory of an entire case is not cured by other instructions on the right the- ory.^^ An instruction which authorizes a verdict, if certain facts are believed, but which facts do not in law justify such a verdict, is not susceptible of being cured by another correct in- struction.^' This rule is equally applicable to criminal cases.^* An instruction, for example, on self-defense which tells the jury that unless the necessity for taking the life of the deceased was actual, present and urgent, the defense of self-defense could not be set up is erroneous because of the omission of the qualification that an assailed person may act on appearances and this error is 75 N. W. 650; Rudd v. Dewey, 121 Iowa 454, 96 N. W. 973; Eisf elder V. Klein, 5 Ky. L. 138; Gorstz v. Mound City Boot &c. Co., 90 Mo. App. 305; Sands v. Marquardt, 113 Mo. App. 490, 87 S. W. 1011; Gordy V. Manufacturers' Coal &c. Co., 151 Mo. App. 455, 132 S. W. 21; Pyburn V. Kansas City, 166 Mo. App. ISO, 148 S. W. 193; Smith v. Perham, 33 Mont. 309, 83 Pac. 492; Missouri Pac. R. Co. V. Fox, 56 Nebr. 746, 17 N. W. 130; Standard Distilling &c. Co. V. Harris, 75 Nebr. 480, 106 N. W. 582; Jones v. Life Ins. Co., 151 N. Car. 54, 65 S. E. 602; Fitzpatrick V. Union Trac. Co., 206 Pa. 335, 55 Atl. 1050; Citizens' St. R. Co. v. Shepherd, 107 Tenn. 444, 64 S. W. 710; Missouri &c. R. Co. v. Mills, 27 Tex. Civ. App. 245, 65 S. W. 74; Petty V. Jordan-Spencer Co. (Tex. Civ. App.), 135 S. W. 227; Baker v. Ma- gee (Tex. Civ. App.), 136 S. W. 1161; Wilkinson v. Fralin (Tex. Civ. App.), 149 S. W. 548; Continental Casualty Co. v. Peltier, 104 Va. 222, 51 S. E. 209; Ward v. Ward, 47 W. Va. 766, 35 S. E. 873; Eggett v. Al- len, 106 Wis. 633, 82 N. W. 556; DriscoU V. Allis-Chalmers Co., 144 Wis. 451, 129 N. W. 401; Carle v. Nelson, 145 Wis. 593, 130 N. W. 467; Acme Cement Plaster Co. v. West- man (Wyo.), 122 Pac. 89. An er- roneous instruction is not cured by other instructions embodying other facts and not modifying or explain- ing it. Godfrey v. Meridian R. &c. Co., 101 Miss. 565, 58 So. 534. An in- struction founded upon the humani- tarian rule which permitted a recov- ery upon a ground of negligence not alleged was not cured by correct in- struction for defendant. Arata v. Metropolitan St. R. Co., 167 Mo. App. 90, 150 S. W. 1122. "^ Pelham Mfg. Co. v. Powell, 6 Ga. App. 308, 64 S. E. 1116. ^'Flucks V. St. Louis &c. R. Co. (Mo. App.), 122 S. W. 348. ^ Winn V. Walker, 145 111. App. ilZ. "* People V. Westlake, 124 Cal. 452, 57 Pac. 465; People v. Maughs, 149 Cal. 253, 86 Pac. 187; State v. Ar- doin, 49 La. Ann. 1145, 22 So. 620, 141 INTERPRETATION AND EFFECT. §9; not cured by disconnected instructions from which the correct rule may be gathered.^" § 94. Cure of ambiguous instruction by another instruction. An instruction which is ambiguous or defective but not in- correct may be cured by another instruction covering the same matter which makes the ambiguous element clear. ^^ It is another statement of the principle to say an instruction which standing- alone is ambiguous is not erroneous if all the instructions considered together fairly submit the case to the jury.^' § 95. Cure by withdrawal of erroneous instruction. The error in giving an erroneous instruction may be cured by its withdrawal by the court. ^' 62 Am. St. 678; State v. Cable, 117 Mo. 380, 22 S. W. 953; Thompson V. State, 61 Nebr. 210, 85 N. W. 62, 87 Am. St. 453; Howell v. State, 61 Nebr. 391, 85 N. W. 289. -'State V. Miller, 43 Ore. 325, 74 Pac. 658. See also Clay v. State, IS Wyo. 42, 86 Pac. 17. "'Louisville &c. R. Co. v. Young, 168 Ala. 551, S3 So. 213; Denver City Tramway Co. v. Carson, 21 Colo. App. 604, 123 Pac. 680 ; Springfield v. Will- iams, 72 111. App. 439; Gardner v. Ben Steele Weigher Mfg. Co., 142 111. App. 348; Hofifman v. Chicago Wood &c. Co., 162 111. App. 332; Cit- izens' Nat. Bank v. Converse, lOS Iowa 669, 75 N. W. 506; Whoram v. Argentine Tp., 112 Mich. 20, 70 N. W. 341; Anderson v. Union Terminal R. Co., 161 Mo. 411, 61 S. W. 874; Bailey v. Kling, 88 Nebr. 699, 130 N. W. 439; McMahon v. New York News Pub. Co., 51 App. Div. 488, 64 N. Y. S. 713; Knoxville &c. R. Co. v. Wyrick, 99 Tenn. 500, 42 S. W. 434; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584; Ide v. Boston &c. R. Co., 82 Vt. 66, 74 Atl. 401; Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S. E. 692; Pronger v. Old Nat. Bank, 20 Wash. 618, 56 Pac. 391. In criminal cases the rule is the same. See People v. Gee Gong (Cal.), 114 Pac. 78. A proper instruction may cure an improper one, where the cor- rect one explains away the defect in the improper one, but when the in- structions are in direct conflict, a correct statement of the law in one does not cure the error in the other. Baltimore &c. R. Co. v. Morgan, 35 App. D. C. 195. "Idaho Gold Coin Min. &c. Co. v. Colorado Iron Works, 49 Colo. 66, HI Pac. 553. "* Southern R. Co. v. Holbrook, 124 Ga. 679, S3 S. E. 203; Roberts v. Pat- §95 INSTRU CTIO NS RULES. 142 An instruction undoubtedly erroneous as stating a principle inapplicable to the case on trial may be cured by another charge in immediate connection therewith that the law which the court has announced has no application to the case on trial.^' Where an instruction, in an action for personal injuries, incorrectly al- leges that certain injuries are of a permanent character, the error is cured by a subsequent instruction that the jury should not allow damages for permanent injuries of any kind.^" It would seem that the withdrawal should be made before the jury retires and that it is too late when attempted after the jury has com- menced its deliberations.^^ terson, "11 III. App. 394; Mengelkamp V. Consolidated Coal Co., 173 111. App. 370; Scott V. Commonwealth, 29 Ky. 571, 9i S. W. 668; Rudberg v. Bow- den Felting Co., 188 Mass. 365, 74 N. E. 590; Wenzel v. Johnston, 112 Mich. 243, 70 N. W. 549; Atherton v. Ban- croft, 114 Mich. 241, 72 N. W. 208; Stroud V. Smith, 194 Pa. 502, 45 Atl. 329, 75 Am. St. 709. The rule is the same in criminal cases where the withdrawal is made in such a manner as to be understood by the jury. State v. Wells, 54 Kans. 161, 2,1 Pac. 1005; State v. Jones, 36 La. Ann. 204; Reed v. State, 66 Nebr. 184, 92 N. W. 321; State v. May, 15 N. Car. 328; Green v. State, 97 Tenn. 50, 36 S. W. 700. °° Southern R. Co. v. Holbrook, 124 Ga. 679, 53 S. E. 203. ™ Hollingsworth v. Fort Dodge, 125 Iowa 627, 101 N. W. 455. ='Seiber v. Pettit, 200 Pa. 58, 49 Atl. 763. CHAPTER VII. REQUESTS. Section 96. Duty to make timely request and tender proper instructions. 97. Requests for instructions in criminal cases. 98. Requests where general charge indefinite or inadequate. 99. Necessity of clear expression in requested instruction. Section 100. Modification of requested in- structions. 101. Refusal for errors in request. 102. Refusal where matter sufficiently covered by other instructions. 103. Refusal of inconsistent requests. § 96. Duty to make timely request and tender proper in- structions. In civil cases it is the duty of the parties to request instruc- tions (1) on questions of law, if desired, (2) but in any event requests should be made in apt time, as determined by statute or by rule of court, (3) and should be limited in the matter of number (4) and length. (i) Where instructions are desired, in civil actions, the par- ties should make a request therefor.^ A party to a civil action will not generally be heard to com- plain of the failure of the court to instruct on particular matters and issues in the absence of a request for such instruction.^ As a general rule instructions of a general character should be given * Choctaw &c. R. Co. v. Baskins, 78 Ark. 3SS, 93 S. W. 7S7; McKeown v. Dyniewicz, 83 111. App. 509; Rosen- baum Bros. v. Levitt, 109 Iowa 292, 80 N. W. 393; J. V. Pilcher Mfg. Co. V. Teupe, 28 Ky. L. 1350, 91 S. W. 1125; Record Pub. Co. v. Merwin, 115 Mich. 10, 72 N. W. 998; Eagle Const. Co. V. Wabash R. Co., 71 Mo. App. 626; Providence Mach. Co. v. Brown- ing, 72 S. Car. 424, 52 S. E. 117. "Jones V. Seymour, 95 Ark. 593, 130 S. W. 560; Wilkinson v. Service, 249 111. 146, 94 N. E. 50, Ann. Cas. 1912 A, 41; Greenlee v. Ealy, 145 Iowa 394, 124 N. W. 166; Frankfort Glass Works V. Arbogast, 148 Ky. 4, 145 S. W. 1122; Brucken v. Myers, 153 Ky. 274, 155 S. W. 383; Record Pub. Co. v. Merwin, 115 Mich. 10, 72 N. W. 998; King v. Tabor, 15 N. Mex. 488, 110 Pac. 601; Lattimore v. Tar- rant County, 57 Tex. Civ. App. 610, 124 S. W. 205; Newton v. Shivers (Tex. Civ. App.), 136 S. W. 805. Where a party considers that admissi- ble evidence may be confusing he should request a proper charge ex- 143 §96 INSTRUCTIONS RULES. 144 though not requested,^ but in Illinois it is the rule that where no instruction has been prepared and offered by either party, the court is not bound to instruct the jury at all.* Among other things the party will waive his right to complain of an omission to charge where he fails to request instructions on such matters, as the burden of proof,^ the preponderance of evidence," the probative value of mortality tables,' the definitions of particular terms,* the limitation of evidence to a particular purpose,® the theories of the case contended for by the parties," the care required of a master toward his servants,^^ the presumption that one sees and hears what he should have seen and heard,^^ the rule that the jury are the exclusive judges of the facts,^^ and that the advice plaining it. First Nat. Bank v. Alex- ander, 161 Ala. 580, 50 So. 45. "Cleveland v. Emerson (Ind. App.), 99 N. E. 796; In re Beam's Will, 85 Vt. 452, 82 Atl. 734. Not good practice to omit entirely to charge on the measure of damages or mitigation of damages even in the absence of requests. Central of Georgia R. Co. v. Madden, 135 Ga. 20s, 69 S. E. 165, 31 L. R. A. (N. S.) 813. The court should instruct on the measure of damages in an action for personal injuries without request for specific instructions. McLane v. Pittsburg R. Co., 230 Pa. 29, 79 Atl. 237. Where it is likely that the jury may not understand the rule on a ma- terial point, the court must as a gen- eral rule instruct on that point with- ■out request for a charge. Wolf v. Ives, 83 Conn. 174, Id Atl. 526. Or- dinarily the court should give suit- able instructions upon proximate cause whether requested to do so or not, but failure to instruct is not re- versible error where no request is made. Stumm v. Western Union Tel. Co., 140 Wis. 528, 122 N. W. 1032. ' McKeown v. Dyniewicz, 83 111. App. 509. ° Southern R. Co. v. Wright, 6 Ga. App. 172, 64 S. E. 703 ; Texas Baptist University v. Patton (Tex. Civ. App.), 145 S. W. 1063. 'Hardy v. Schirmer, 163 Cal. 272, 124 Pac. 993. ' Chicago Veneer Co. v. Jones, 143 Ky. 21, 135 S. W. 430. "Wickwire v. Webster City Sav. Bank, 153 Iowa 225, 133 N. W. 100 (preference) ; Blue Grass Trac. Co. V. Ingles, 140 Ky. 488, 131 S. W. 278 (ordinary care) ; Stamford Oil Mill Co. V. Barnes, 55 Tex. Civ. App. 420, 119 S. W. 872 (negligence). Party should tender an instruction defining an indefinite term used in another in- struction. Jenney Elec. Mfg. Co. v. Flannery (Ind. App.), 98 N. E. 424. " Posener v. Harvey (Tex. Civ. App.), 125 S. W. 353. ^"Jenkins v. Clopton, 141 Mo. App. 74, 121 S. W. 759; Zolawenski v. Ab- erdeen, 72 Wash. 95, 129 Pac. 1090. "Jaeger v. City R. Co. (W. Va.), 78 S. E. 59. " Cleveland &c. R. Co. v. Lynn, 177 Ind. 311, 98 N. E. 67. "Kansas City &c. R. Co. v. Wor- sham (Tex. Civ. App.), 149 S. W. 755. 145 REQUESTS. 96 of counsel is a defense to an action for malicious prosecution.^* So it has been held that the duty of the court to construe plead- ings, deeds, and contracts and to state their legal effect does not extend to the construction of documents introduced in evidence merely as admissions against interest, in the absence of any re- quest for such construction.^'' (2) It is necessary that requests be made in apt time, as regu- lated by statute or rules of court.^" The request comes too soon when it is made before any evi- dence is introduced,^' and is generally too late when tendered after argument has begun.^* A request for a ruling after the charge of the court has been" given and the jury have retired is rightly refused.^^ But it has been held in Virginia that where an instruction offered during the closing argument propounds the law correctly and explains or qualifies a previous instruction, which otherwise would be likely to mislead, it should be given.^" (3) The number of requested instructions should be confined within reasonable limits.^^ "Lindsey v. Testa, 200 Fed. 124. '"Kincart v. Shanbrook, 64 Ore. 27, 128 Pac. 1003. "Astruc V. Star Co., 182 Fed. 70S. "Comstock V. Livingston, 210 Mass. 581, 97 N. E. 106. "Carmany v. West Jersey &c. R. Co. (Conn.), 74 Atl. 6S6; Farrington V. Cheponis, 84 Conn. 1, 78 Atl. 652 (court has discretion to receive after argument commenced) ; Central of Georgia R. Co. v, Borland, 12 Ga. App. 729, 78 S. E. 352; Rauch v. Bankers' Nat. Bank, 143 111. App, 625 ; Bochat v. Knisely, 144 111. App. 551 (too late after jury about to retire) ; Duckwall V. Williams, 29 Ind. App. 650, 63 N. E. 232; Manning v. An- thony, 208 Mass. 399, 94 N. E. 466, 32 L. R. A. (N. S.) 1179 (too late after special findings are submitted and answered) ; Randall v. Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221 (too late where tendered after conclusion of argument) ; Hall v. St. 10 — Eransox's Inst. Joseph, 163 Mo. App. 214, 146 S. W. 458; Biggs v. Gurganns, 152 N. Car. 173, 67 S. E. 500; Holder v. Giant Lumber Co., 161 N. Car. 177, 76 S. E. 485; Salley v. Cox, 94 S. Car. 216, 11 S. E. 933; White v. Amrhien, 14 S. Dak. 270, 85 N. W. 191 ; Missouri &c. R. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S. W. 254 (discretion to give after jury has retired) ; Johnson v. Central Vermont R. Co., 84 Vt. 486, 79 Atl. 1095 (too late after conclusion of argument). Where there is a rule of court requiring all instructions to be submitted and passed upon before the commencement of argument, there will be no error in declining to give an instruction tendered in violation of the ?ule. McPheeters v. Hannibal &c. R. Co., 45 Mo. 22. '" Garrity v. Higgins, 177 Mass. 414, 58 N. E. 1010. '° Hoge V. Turner, 96 Va. 624, 32 S. E. 291. ^Atlantic Coast Line R. Co. v. § 97 INSTRUCTIONS RULES. I46 Where numerous instructions are requested, it is unreasonable to expect the trial court to give them all a close examination or to hope for a critical review by the appellate court in order to find one that might appropriately have been given.^^ Thus, it is imposing an undue burden upon the trial judge to ask him to pass upon eighty-four instructions requested by one of the par- ties, and he will be justified in refusing them all without exam- ination and substituting therefor an instruction of his own cov- ering the party's theory of the case.^' So, where a party tendered thirty-one instructions, in a case involving few principles of law, the number was held to be beyond reasonable limits.^* (4) Prayers of extreme length are discouraged.-^ A prayer of unusual length fails to subserve the purpose of an instruction by assisting and enlightening the jury,^^ and where the issues are not intricate, there is a tendency, in multiplying points and requests, to confuse and mislead. ^^ Thus where an instruction is unduly prolix and has the fault of "excessive ver- biage," it may be refused, particularly when the charge as given covers all the questions involved in the case.^* So, a prayer con- taining nearly 2,000 words has been held one of such unusual length as would tax the patience and discriminative powers of the jury and was rightly refused.^" § 97. Requests for instructions in criminal cases. The foregoing rule applies in every respect to requests for instructions in criminal cases.^" Whitney (Fla.), 61 So. 179; Neigh- rect, the court is justified in its re- bors V. Leatherman, 116 Md. 484, 82 fusal. Castelano v. Chicago &c. R. Atl. 152 (refusal proper for indefinite- Co., 149 111. App. 2S0. ness). Requests asked in bulk may ^"Maryland Steel Co. y. Engleman, be refused. Basenberg v. Lawrence, 101 Md. 661, 61 Atl. 314. 160 Ala. 422, 49 So. 771. " Kimball &c. Mfg. Co. v. Vroman, "^ Bergeman v. Indianapolis &c. R. 35 Mich. 310, 24 Am. Rep. 558. Co., 104 Mo. 77, 15 S. W. 992. =' Ryan v. Washington &c. R. Co., '''Chicago Athletic Assn. v. Eddy 8 App. D. C. 542. Elec. Mfg. Co., 77 111. App. 204. " Maryland Steel Co. v. Engleman, ** Salem v. Webster, 192 111. 369, 61 101 Md. 661, 61 Atl. 314. N. E. 323. "Renfroe v. State, 10 Ga. App. 38, "" If an instruction is long and in- 72 S. E. 520 ; People v. Lucas, 244 111. volved and contains an improper 603, 91 N. E. 659. statement even though otherwise cor- 147 REQUESTS. §97 The court should instruct on all essential questions of law in- volved in the case whether requested or not.^^ This ordinarily requires that he should instruct without request on such questions as the presumption of innocence/^ and the necessity that the state should prove the venue.^^ The request must be made within apt time.*** Among other things it has been held, however, that, in the absence of a request to charge, a party may not com- plain of the failure of the court to instruct on such subjects as alibi,^° reasonable doubt,^" threats,^^ provocation,^^ self-defense,^" the good character of accused,*" the character of deceased for violence," the impeachment of witnesses,*^ confessions,*^ circum- stantial evidence,** the relative value of positive and negative tes- timony,*'* evidence of other crimes,*^ the testimony of accom- " State V. Lackey, 230 Mo. 707, 132 S. W. 602; State v. Gaultney, 242 Mo. 388, 146 S. W. 1153. ''Webb V. State, 11 Ga. App. 8S0, 76 S. E. 990. But see State v. Cline, 27 S. Dak. 573, 132 N. W. 160. ""Norris v. State, 127 Tenn. 437, 155 S. W. 165. "Lindsey v. State, 138 Ga. 818, 76 S. E. 369; Maddox v. State, 9 Ga. App. 448, 71 S. E. 498. "People V. Bolik, 241 111. 394, 89 N. E. 700; State v. Dockery, 243 Mo. 592, 147 S. W. 976; Jones v. State, 64 Tex. Cr. 510, 143 S. W. 621. Request unnecessary where alibi the only defense. Hobbs v. State, 8 Ga. App. 53, 68 S. E. 515. ''Jackson v. State, 132 Ga. 570, 64 S. E. '656; Nelson v. State, S Okla. Cr. 368, 114 Pac. 1124. " Kimbrell v. State, 138 Ga. 413, 75 S. E. 252. "Harrelson v. State, 60 Tex. Cr. 534, 132 S. W. 783. '"People V. Droste, 160 Mich. 66, 125 N. W. 87. But see Collegenia v. State (Okla. Cr. App.), 132 Pac. 375. "Ellison V. State, 137 Ga. 193, 1Z S. E. 255 ; State v. Brandenberger, 151 Iowa 197, 130 N. W. 1065; State v. Poder, 154 Iowa 686, 135 N. W. 421 ; State V. Kimmel, 156 Mo. App. 461, 137 S. W. 329. *' Tillman v. State, 136 Ga. 59, 70 S. E. 876. ''People V. Haydon, 18 Cal. App. 543, 123 Pac. 1102; Jackson v. State, 135 Ga. 684, 70 S. E. 245; Washing- ton V. State, 138 Ga. 370, 75 S. E. 253; Craig v. State, 9 Ga. App. 233, 70 S. E. 974; State v. Willette, 46 Mont. 326, 127 Pac. 1013. "^ Reagan v. People, 49 Colo. 316, 112 Pac. 785; Cook v. State, 9 Ga. App. 208, 70 S. E. 1019. "Robinson v. United States, 172 Fed. 105 ; Barron v. State, 12 Ga. App. 342, 11 S. E. 214; Goldsberry v. State, 92 Nebr. 211, 137 N. W. 1116; State V. Millard, 30 S. Dak. 169, 138 N. W. 366. It is only where the state relies wholly on circumstantial evidence that it is incumbent on the court without request to instruct as to the probative value of circumstantial evi- dence. Young V. State (Ga. App.), 76 S. E. 753. ** Patterson v. State, 134 Ga. 264, 67 S. E. 816. *° State V. Rosco, 239 Mo. 535, 144 S. W. 449. 98 INSTRUCTIONS RULES. 148 plices/^ the effect of the uncorroborated testimony of a prosecu- trix/* the definition of lesser included offenses/" and the defini- tion of such terms as "prima facie evidence,'"^" "heat of pas- sion,"^^ and "malt" or "alcoholic" liquors/^ It is the better prac- tice to reduce the requested instruction to writing/^ In some states the request may be refused if not signed by counsel/* It is held not error to preface the instruction with the statement that it is given by request, as the instructions are the law of the case whether given on request or on court's own motion.^^ § 98. Requests where general charge indefinite or inade- quate. Where the instructions given by the court are too general and indefinite or are inadequate by reason of omissions, it is the duty of the party aggrieved thereby to tender at the proper time proper instructions to cure the defect, and if he fails to do so he can not be heard to complain on these grounds.^® « State V. Miller, 83 Kans. 410, 111 Pac. 437; State v. Hann, 24 S. Dak. 639, 124 N. W. 9SS. "' McQueary v. People, 48 Colo. 214, 110 Pac. 210. "State V. Truskett, 85 Kans. 804, 118 Pac. 1047; Krause v. State, 88 Nebr. 473, 129 N. W. 1020, Ann. Cas. 1912 B, 736; State v. Frazer, 23 S. Dak. 304, 121 N. W. 790. Each de- gree of homicide should be defined without request. Atchison v. State, 3 Okla. Cr, 295, 105 Pac. 387. "Fagnani v. State (Tex. Cr. App.), 146 S. W. 542. " Beauregard v. State, 146 Wis. 280, 131 N. W. 347. "Edwards v. Gulfport, 95 Miss. 148, 49 So. 620. ■"Hunter v. State, 136 Ga. 103, 70 S. E. 643; Smith v. State, 17 Wyo. 481, 101 Pac. 847. ='Bader v. State, 176 Ind. 268, 94 N. E. 1009; Weigand v. State, 178 Ind. 623, 99 N. E. 999. ■"Lott V. State (Tex. Cr. App.), 146 S. W. 544; State v. Poyner, 57 Wash. 489, 107 Pac. 181. But see State v. Marren, 17 Idaho 766, 107 Pac. 993, 134 Am. St. 286. "' Denver Tramway Co. v. Crum- baugh, 23 Colo. 363, 48 Pac. 503; French v. Waterbury, 72 Conn. 435, 44 Atl. 740; Central of Georgia R. Co. V. Hardin, 114 Ga. 548, 40 S. E. 738, 58 L. R. A. 181 ; Thode v. Peter Schoenhofen 'Brewing Co., 69 111. App. 403 ; Chamness v. Chamness, S3 Ind. 301 ; Roller v. James, 6 Kans. App. 919, 49 Pac. 630; Illinois Cen- tral R. Co. V. Jackson, 117 Ky. 900, 79 S. W. 1187; Bokenfohr v. Bush, 117 Mich. 444, 75 N. W. 929; Elling- ton V. Great Northern R. Co., 92 Minn. 470, 100 N. W. 218; Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Rich- ardson V. Metropolitan St. R. Co., 166 Mo. App. 162, 147 S. W. 1126; Peterson v. State, 63 Nebr. 251, 88 N. W. 549; Camden &c. R. Co. v. 149 REQUESTS. 98 Where the instructions given by the court are correct so far as they go, a party who does not request additional and more ex- plicit instructions may not complain that the instructions are mis- leading,"' or that there are omissions necessary to a proper under- Williams, 61 N. J. L. 646, 40 Atl. 634; Felice v. New York Central &c. R. Co., 14 App. Div. 345, 43 N. Y. S. 922; Patterson v. Mills, 121 N. Car. 258, 28 S. E. 368; Page v. Finley, 8 Ore. 45 ; Kaufman v. Pittsburg &c. R. Co., 210 Pa. 440, 60 Atl. 2 ; Cross- well V. Connecticut Indemnity Assn., 51 S. Car. 103, 28 S. E. 200; Winn v. Sanborn, 10 S. Dak. 642, 75 N. W. 201 ; Nashville &c. R. Co. v. Heikens, 112 Tenn. 378, 79 S. W. 1038, 65 L. R. A. 298; Galveston City R. Co. v. Chapman, 35 Tex. Civ. App. 551, 80 S. W. 856; Henry C. Werner Co.- v. Calhoun, 55 W. Va. 246, 46 S. E. 1024. "Birmingham R. &c. Co. v. Clark, 148 Ala. 673, 41 So. 829; Tennessee Coal &c. Co. V. Williamson, 164 Ala. 54, 51 So. 144; Dupuy v. Wright, 7 Ala. App. 238, 60 So. 997 ; McGee v. Smitherman, 69 Ark. 632, 65 S. W. 461; Mountz v. Apt, 51 Colo. 491, 119 Pac. 150; Pensacola Elec. Co. v. Bis- sett, 59 Fla. 360, 52 So. 367; A. G. Garbutt Lumber Co. v. Lynn, 137 Ga. 592, n S. E. 841; Valparaiso Light- ing Co. V. Tyler, 177 Ind. 278, 96 N. E. 768; O'Mara v. Jensma, 143 Iowa 297, 121 N. W. 518; National Bank v. Ward, 6 Kans. App. 921, 51 Pac. 58; Cincinnati &c. R. Co. v. Martin, 146 Ky. 260, 142 S. W. 410; Pierce V. Arnold Print Works, 182 Mass. 260, 65 N. E. 368; Spray v. Ayotte, 161 Mich. 593, 126 N. W. 630 ; Ripley V. Priest, 169 Mich. 383, 135 N. W. 258; Gruber v. German Roman Cath- olic Aid Assn., 113 Minn. 340, 129 N. W. 581; First National Bank v. Ragsdale, 171 Mo. 168, 71 S. W. 178; Dunham v. Miller, 154 Mo. App. 314, 133 S. W. 675; Riley v. Missouri Pac. R. Co., 69 Nebr. 82, 95 N. W. 20; Trollinger v. Fleer, 157 N. Car. 81, 72 S. E. 795 ; State v. Banik, 21 N. Dak. 417, 131 N. W. 262; Columbus R. Co. V. Ritter, 67 Ohio St. 53, 65 N. E. 613; St. Louis &c. R. Co. v. Crowell, ii Okla. m, 127 Pac. 1063; Irwin V, Pennsylvania R. Co., 226 Pa. 156, 75 Atl. 19; Leppard v. Western Un- ion Tel. Co., 88 S. Car. 388, 70 S. E. 1004; Counell v. Canton, 24 S. Dak. 572, 124 N. W. 839; Parks v. Sullivan (Tex. Civ. App.), 152 S. W. 704; Harris v. Brown's Bay Logging Co., 57 Wash. 8, 106 Pac. 152; Owen v. Long, 91 Wis. 78, 72 N. W. 364. It is not required of the court in the general charge to give the whole law of the case. Additional charges should be requested. Wood v. Rigg, 152 Ky. 242, 153 S. W. 214. Where an instruction needs explanation to make it applicable to the case, an ex- planatory charge should be requested. Central of Georgia R. Co. v. Dothan Mule Co., 159 Ala. 225, 49 So. 243. A party conceiving that instructions do not fully present all the issues to the jury, must request instruc- tions which will supply the defi- ciency. Valparaiso Lighting Co. v. Tyler, 177 Ind. 278, 96 N. E. 768. A charge submitting matters of defense conjunctively is not affirmatively er- roneous. The defect is one of omis- sion to be corrected by a request for instructions submitting the matters disjunctively. Oar v. Davis (Tex. Civ. App.), 135 S. W. 710. §98 INSTRUCTIONS RULES. 150 standing of his contentions.^^ The rule is the same where the instructions are correct in principle but are expressed in too gen- eral terms.^' Generally, where one of the parties fears that the jury may be misled by an instruction as given, it is his duty to request further and more explicit instructions.®" The inade- quacy of a charge as given should be pointed out at the time, coupled with a request for more detailed instructions.'^^ The in- adequacy of instructions as to the measure of damages is not ground for reversal where more explicit instructions were not requested.*^ A party should request a definition of terms which the charge of the court fails to define or he will be denied the right to complain of this lack."^ Where a party asks only for a ''Idaho Gold Coin Min. &c. Co. v. Colorado Iron Works Co., 49 Colo. 66, 111 Pac. 553 (time from which interest should be allowed) ; Dighera V. Wheat, 85 Kans. 458, 116 Pac. 616; Suiter V. Chicago &c. R. Co., 84 Nebr. 256, 121 N. W. 113; McCoy v. Atlantic Coast Line R. Co., 84 S. Car. 62, 65 S. E. 939; Freeman v. Cleary (Tex. Civ. App.), 136 S. W. 521; National Bank v. Illinois &c. Lumber Co., 101 Wis. 247, n N. W. 185. Instruction as to impeachment of witness should be requested where omitted. Martin V. Leesburg Bank, 137 Ga. 285, 73 S. E. 387. ™ Christensen v. Tate, 87 Nebr. 848, 128 N. W. 622; Zilke v. Johnson, 22 N. Dak. 75, 132 N. W. 640, Ann. Cas. 1913 E, 1005. There should be a re- quest for a more complete instruction if the charge, as given, is lacking in some particular, as in the matter of fullness of statement of a principle of law. Turner v. Tootle, 9 Kans. App. 765, 58 Pac. 562. "Forst V. Leonard, 116 Ala. 82, 22 So. 481 ; Flowers v. Flowers, 74 Ark. 212, 85 S. W. 242; Commonwealth V. "Middleby, 187 Mass. 342, 1i N. E. 208; Lahr v, Kraemer, 91 Minn. 26, 91 N. W. 418; Brownell v. Fuller, 60 Nebr. 558, 83 N. W. 669; Woods v. Long Island R. Co., 159 N. Y. 546, 54 N. E. 1095. " Parker v. Bond, 121 Ala. 529, 25 So. 898; Little v. Southern R. Co., 120 Ga. 347, 47 S. E. 953, 66 L. R. A. 509, 102 Am. St. 104; McAfee v. Montgomery, 21 Ind. App. 196, 51 N. E. 957 ; Ware Cattle Co. v. Anderson, 107 Iowa 231, n N. W. 1026; Turner V. Tootle, 9 Kans. App. 765, 58 Pac. 562; Louisville v. Keher, 117 Ky. 841, 79 S. W. 270, 111 Am. St. 269; Gay V. Boston &c. R. Co., 141 Mass. 407, 6 N. E. 236; Lyons v. Red Wing, 76 Minn. 20, 78 N. W. 868; Nadeau v. Sawyer, 73 N. H. 70, 59 Atl. 369; Grossbaum Ceramic Art Syndicate v. German Ins. Co., 213 Pa. 506, 62 Atl. 1107; Pooler v. Smith, 73 S. Car. 102, 52 S. E. 967, 4 L. R. A. (N. S.) 746; National Bank v. Illinois &c. Lumber Co., 101 Wis. 247, 77 N. W. 185. "'Voelker v. Hill-0'Meara Const. Co., 153 Mo. App. 1, 131 S. W. 907; Powell v. Morgan Smith Co., 237 Pa. 272, 85 Atl. 416; Texas &c. R. Co. v. Bullard (Tex. Civ. App.), 127 S. W. 1152. «' Pye V. Pye, 133 Ga. 246, 65 S. E. 424; Rippetoe v. Missouri &c. R. Co., 138 Mo. App. 402, 122 S. W. 314; St. iSi REQUESTS. '99 peremptory instruction, when under the evidence there was an issue of fact, he can not complain that further instructions were not given."* It is not required that instructions should state to which count of the declaration they apply in the absence of re- quest to that effect."^ The rule that a party must request more specific instructions appHes in criminal cases,"" and such instruc- tions should be requested where the charge of the court is incom- plete,"^ or may have a tendency to mislead."^ § 99. Necessity of clear expression in requested instruction. The request must be stated in clear, distinct and definite language, and should be refused where the language em- ployed is vague, indefinite and calculated to mislead the jury."* The instruction should state a complete legal proposition,'"' Louis &c. R. Co. V. Moore, 161 Mo. App. 274, 143 S. W. 889 (punitive damages) ; Thomas v. Williams, 139 Wis. 467, 121 N. W. 148 (malicious). "Prioleau v. Williams, 104 Ark. 322, 149 S. W. 101. '^Adamson v. Norfolk &c. Trac. Co., Ill Va. 556, 69 S. E. 1055. ™ Steers v. United States, 192 Fed. 1; Schultz V. United States, 200 Fed. 234; People v. Anthony, 20 Cal. App. 586, 129 Pac. 968; Dickens v. State, 137 Ga. S23, 73 S. E. 826; Whitley v. State, 8 Ga. App. 165, 68 S. E. 863; Lepinsky v. State, 124 La. 744, 50 So. 699; State v. Yates, 155 N. Car. 450, ■71 S. E. 317; State v. Cokley, 83 S. Car. 197, 65 S. E. 174; Hoyle v. State, 62 Tex. Cr. 297, 137 S. W. 355; Powdrill V. State (Tex. Cr. App.), 155 S. W. 231. "Brundage v. State, 7 Ga. App. 726, 67 S. E. 1051 ; Birmingham v. State, 145 Wis. 90, 129 N. W. 670, 32 L. R. A. (N. S.) 744 ■" Jones V. State (Ala.), 58 So. 250. Fuller definitions should be requested. State V. Chastain, 85 S. Car. 64^ 67 S. E. 6. ™Kehl V. Abram, 112 111. App. 11; Neighbors v. Leatherman, 116 Md. 484, 82 Atl. 152 ; American Steel Pack- ing Co. V. Conkle, 86 Ohio 117, 99 N. E. 89; Barnes v. Dallas Consol. Elec. St. R. Co., 103 Tex. 387, 128 S. W. 367; Creager v. Yarborough (Tex. Civ. App.), 87 S. W. 376; Patton v. Elks River Nav. Co., 13 W. Va. 259. Vague verbal request not sufficient to require court to instruct on collat- eral matters. State v. Starr, 244 Mo. 161, 148 S. W. 862. Requested in- structions in misdemeanor cases, un- like those in felony cases, must state pointedly the law applicable to the case. Brent v. State, 57 Tex. Cr. 411, 123 S. W. 593. Requests should ordinarily contain only plain prop- ositions of law, based on stated assumptions of fact not unwarranted by the evidence. They should not contain statements of disputed facts or evidence. Urbansky v. Kutinsky, 86 Conn. 22, 84 Atl. 317, Ann. Cas. 1913 D, 826. '"Turner v. State, 160 Ala. 55, 49 So. 304; Wright v. Western &c. R. Co., 139 Ga. 343, 11 S. E. 161; State § lOO INSTRUCTIONS RULES. I 52 and should be so framed as to make the law applicable to the par- ticular facts in issue." It should be refused if it is unintelligible or meaningless/^ or needs construction to prevent misleading the jury.'^ The court may refused a request that is interlined and contains erasures as that is calculated to confuse the jury.'* Where an instruction states the law in technical language and in such a manner that its meaning is apt to be misunderstood by the jury, requiring more than a verbal change to make it clear, there will be no error in refusing it.'' So, where an instruction fails to make good sense, it should be withheld, and this will be true even though it may be apparent that the word "defendant" was unintentionally used for "plaintiff."" But, while it is true that the form of an instruction should be clear and intelligible, it is not necessary to anticipate and guard against every possibility of misapprehension.'' A bare exception to a charge given is not equivalent to a request for an instruction on the subject covered by the instruction to which exception is taken. '^ § 100. Modification of requested instructions. An instruction should be good as asked, and, ordinarily, it may be refused if it requires (1) modification or explanation, (2) or if it is correct in part only, (3) but the court may mod- ify a requested instruction to conform to the facts and give it V. Blount, 124 La. 202, SO So. 12. which called on the court to pass on Proper to refuse request omitting a controverted questions of fact rather material qualification of the subject- than on questions of law properly re- matter. Arlington Nat. Bank v. Ben- fused. Louisville &c. R. Co. v. nett, 214 Mass. 352, 101 N. E. 982. Korbe (Ind. App.), 90 N. E. 483. "Cobb V. Bradford Tp., 232 Pa. "Roberts v. State, 171 Ala. 12, 54 198, 81 Atl. 199. A point should con- So. 993. tain but a single legal proposition and " Ramsey v. Burns, 27 Mont. 154, be so constructed that the trial court 69 Pac. 711. can answer it by a single affirmation " Macon Street R. Co. v. Barnes, or negation. Schweitzer v. Williams, 113 Ga. 212, 38 S. E. 756, 84 Am. St. 43 Pa. Super. Ct. 202. 233. " McDonald v. State, 165 Ala. 85, " Parson v. Lyman, 71 Minn. 34, 73 51 So. 629; Lee v. State, 3 Ala. App. N. W. 634. 36, 57 So. 395. "Ripper v. United States, 179 Fed. "Jebeles &c. Confectionery Co. v. 497. Booze (Ala.), 62 So. 12. Requests 153 REQUESTS. § lOO in his own language, provided the law is correctly stated and the substance of the offered instruction is given. (i) A requested instruction should correctly state the law applicable to the issues.'' Where a requested instruction does not expound the law cor- rectly, there will be no error in refusing to give it/° and the court will be under no obligation to modify it or substitute therefor a correct instruction to remedy the defect,'"^ unless the instruction asked for is of such a character that to give or refuse it might mislead the jury.*^ Where, however, there is an omission to in- struct as to an issue and an incorrect instruction relative to such point is presented, it will be the court's duty to instruct properly thereon.*^ (2) The principle that an instruction should expound the law with accuracy applies to the entire request, and even if an in- struction is partially correct, it may be wholly rejected.^* "Jackson v. State, 91 Ark. 71, 122 S. W. 101; State v. Schmeller, 120 Minn. 26, 138 N. W. 937; Cooper v. State, 123 Tenn. 2>1, 138 S. W. 826. '"Keller v. Reynolds, 12 Ind. App. 383, 40 N. E. 1(>; Keen v. Monroe, 7S Va. 424. Not refused merely because susceptible to such an interpretation as to make its propositions not abso- lutely accurate. Rothe v. Pennsyl- vania Co., 19S Fed. 21. ''CoUey V. State, 167 Ala. 109, 52 So. 832; American Ins. Co. v. Haynie, 91 Ark. 43, 120 S. W. 825; State v. Fogg, 107 Maine 177, 11 Atl. 714; ATinapolis Gas &c. Co. v. Fredericks, 112 Md. 449, 11 Atl. hi\ D'Arcy v. Catherine Lead Co., 155 Mo. App. 266, 133 S. W. 1191; Perkins v. State (Tex. Cr. App.), 144 S. W. 241; Mealer v. State (Tex. Cr. App.), 145 S. W. 353. Proper to refuse request that would need modification to make it state correct proposition. Man- chester BIdg. &c. Assn. v. AUee, 81 N. J. L. 605, 80 Atl. 466. " Keen v. Monroe, 75 Va. 424. The court may properly refuse instruction either too broad or too restricted though the court might well have charged on subjects suggested there- by. Hydraulic Cement Block Co. v. Christensen, 38 Utah 525, 114 Pac. 524. "^Kinyon v. Chicago &c. R. Co., 118 Iowa 349, 92 N. W. 40, 96 Am. St. 382; Nicola Bros. Co. v. Hurst, 28 Ky. L. 87, 88 S. W. 1081; Black v. Buckingham, 174 Mass. 102, 54 N. E. 494; Hatton v. Mountford, 105 Va. 96, 52 S. E. 847. "Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, 140 Am. St. 141; Al- len V. Shires, 47 Colo. 433, 107 Pac. 1070; Gill V. Schneider, 48, Colo. 382, 110 Pac. 62; Johnson v. Connecticut Co., 85 Conn. 438, 83 Atl. 530; Nash V. Orr, 9 Ga. App. i?,, 10 S. E. 194; McNetton v. Herb, 158 Mich. 525, 123 N. W. 17; Harris v. Atlantic Coast Line k. Co., 132 N. Car. 160, 43 S. E. 589; Perry v. Sheldon, 30 R. I. 426, 75 Atl. 690; Stanton v. Southern R. Co., 56 S. Car. 398, 34 S. E. 695; § lOO INSTRUCTIONS RULES. 154 The instruction must be correct as a whole,*^ and any material erroneous statement contained tlierein will justify its entire re- jection.*^ This is equally true of instructions in criminal cases." (3) The court may modify requests to conform to the facts and he may if he chooses submit the substance of the request in his own language, though the requested instruction is correct.'^ A party is not entitled to an instruction in any particular form of words.** The court may modify the requested instruction by eliminating argumentative matter,'" or he may modify an ab- stract proposition so as to cover a concrete case presented by the evidence.'^ A request which is not supported by the evidence may be refused"^ or modified."^ And the party offering the in- struction can not complain that it is modified by the court, where it is not founded on the evidence and where it assumes the exist- Grant v. Whorton, 28 S. Dak. 599, 134 N. W. 803; Louisville &c. R. Co. V. Smith, 123 Tenn. 678, 134 S. W. 866; Williams v. Yoe, 22 Tex. Civ. App. 446, 54 S. W. 614 ; Evans v. Ore- gon Short Line R. Co., 2,1 Utah 431, 108 Pac. 638, Ann. Cas. 1912 C, 259; Needham v. Boston &c. R. Co., 82 Vt. 518, 74 Atl. 226; Croft v. North- western S. S. Co., 20 Wash. 175, 55 Pac. 42. *= York V. Parker, 109 Maine 414, 84 Atl. 939. '" Greeley Irr. Co. v. Von Trotha, 48 Colo. 12, 108 Pac. 985. "State V. Rivers, 84 Vt. 154, 78 Atl. 786. "* New London v. Robbins, 82 Conn. €23, 74 Atl. 938; Evans v. Lafeyth, 29 Kans. 736; Slusher v. Hopkins, 28 Ky. L. 347, 89 S. W. 244; Day v. Cooley, 118 Mass. 524; O'Leary v. Boston Elev. R. Co., 209 Mass. 62, 95 N. E. 85; Anderson v. Foley, 110 Minn. 151, 124 N. W. 987; Elwell v. Roper, 72 N. H. 585, 58 Atl. '507; Pavan v. Worthen &c. Co., 80 N. J. L.-567, 78 Atl. 658; Nutt v. Isensee, 60 Ore. 395, 119 Pac. 722; Hufnagle v. Dela- ware &c. Co., 227 Pa. 476, 76 Atl. 205, 40 L. R. A. (N. S.) 494; Pooler v. Smith, 73 S. Car. 102, 52 S. E. 967, 4 L. R. A. (N. S.) 746; Speight v. Rocky Mountain Bell Tel. Co., 36 Utah 483, 107 Pac. 742; Edwards v. Seattle &c. R. Co., 62 Wash. 11, 113 Pac. 563, 36 L. R. A. (N. S.) 1155, Ann. Cas. 1912 C, 965. It has been held, however, that the court should give or refuse a charge as requested — that it is improper to alter a charge without the consent of the party ask- ing it and give it as such party's charge. St. Louis Southwestern R. Co. V. Ball, 28 Tex. Civ. App. 287, 66 S. W. 879. ™ Security Life &c. Co. v. Forrest, 152 N. Car. 621, 68 S. E. 139; Aver- buch V. Great Northern R. Co., 55 Wash. 633, 104 Pac. 1103. "People V. Palasson, 14 Cal. App. 123, 111 Pac. 109 (criminal case); Gibson V. Doyle, 37 Utah 21, 106 Pac. 512. "^ Parfitt V. Sterling Veneer &c. Co., 68 W. Va. 438, 69 S. E. 985. "'Baltimore &c. R. Co. v. Few, 94 Va. 82, 26 S. E. 406. ""Fisher v. St. Louis Trans. Co., 198 Mo. 562, 95 S. W. 917. 155 REQUESTS. § lOl ence of a non-existing fact."* The right to modify requests is the same in criminal as civil cases. "'^ In such cases the court may ordinarily charge the substance of the request in his own lan- guage. "° Where, however, the law is correctly stated in the re- quest, the court should not weaken the statement by adding mat- ter not pertinent although correct in the abstract."^ § 101. Refusal for errors in request. Where several distinct propositions of law are embodied in one request, and (1) one of them is unsound, (2) or where there is a request for a single connected charge, and a portion of it announces an incorrect or inapplicable principle, the entire request must fall. (i) The court will be justified in rejecting, in its entirety, a request containing a number of propositions where one or more of them are incorrect.'' "Crown Coal &c. Co. v. Taylor, 184 111. 250, 56 N. E. 328. °° People V. Carantan, 11 Cal. App. 561, 105 Pac. 768; Colombo v. State, 25 Del. 28, 78 Atl. 595. =° Johnson v. State, 88 Nebr. 328, 129 N. W. 281 ; State v. Barrett, 151 N. Car. 665, 65 S. E. 894, 134 Am. St. 1002; State v. Price, 158 N. Car. 641, 74 S. E. 587 ; State v. Tate, 161 N. Car. 280, 76 S. E. 713 ; State v. Kara- mel, 23 S. Dak. 465, 122 N. W. 420; State V. Cherry Point Fish Co., 72 Wash. 420, 130 Pac. 499. Substance should he given where request suffi- cient to call attention of court to its failure to submit defense. Eubanks V. State, 57 Tex. Cr. 153, 122 S. W. 35. " People V. Emmons, 13 Cal. App. 487, 110 Pac. 151; State v. Bowman, 152 N. Car. 817, 67 S. E. 1058. •' Sweeney v. Erving, 228 U. S. 233, 23 Sup. Ct. 416, 57 L. ed. 815; Chi- cago &c. R. Co. V. Hale, 176 Fed. 71, 27 L. R. A. (N. S.) 1114; South- ern R. Co. V. Bradford, 145 Ala. 684, 40 So. 100; Bohanon y. Dodd, 7 Ala. App. 220, 60 So. 955; Grace v. Mc- Kinney, 112 Ga. 425, 37 S. E. 737; Hunt V. Travellers' Ins. So., 139 Ga. 464, 77 S. E. 375;- Nelson v. Fehd, 203 111. 120, 67 N. E. 828; Howerton v. Iowa State Ins. Co., 105 Mo. App. 575, 80 S. W. 27; Holmes v. Ashta- bula Rapid Trans. Co. (Ohio), 10 O. C. D. 638; Seifred v. Pennsylvania R. Co., 206 Pa. 399, 55 Atl. 1061; McGee v. Wells, 52 S. Car. 472, 30 S. E. 602; Western Union Tel. Co. v. McConnico, 27 Tex. Civ. App. 610, 66 S. W. 592. The general rule in Texas is that where the charge asked con- sists of several separate subdivisions, defining as many distinct and sup- posed necessary conditions of fact to be found by the jury, and one of such subdivisions is not the law as applied to the facts the court may eliminate such subdivision and give the special charge so modified, and the same will not be reversible error, but the court is not required to make this modification. Grigsby v. Reib (Tex. Civ. App.), 139 S. W. 1027. § I02 INSTRUCTIONS RULES. 1 56 This is the rule in criminal as well as civil cases. °^ The court should refuse an instruction which is not a correct statement of the law apphcable to theory of accused.^ (2) If a request is in part incorrect, or is inappropriate as applied to the facts, the court commits no error in wholly refus- ing it.^ Thus, where counsel for one of the parties presents to the court a statement of facts which he claims to be undisputed, following it with the clause, "Upon these undisputed facts I charge you," the form makes it a single request, and if the statement of facts is in any manner incorrect, the instructions in their entirety must be rejected.' § 102. Refusal where matter sufficiently covered by other in- structions. A requested instruction is properly refused where it em- bodies principles laid down in substance in instructions al- ready given by the court.* ■^ Howard v. State, 165 Ala. 18, SO v. Cox, 103 Tenn. 368, 53 S. W. 734; So. 954, 138 Am. St. 17; People v. St. Louis Southwestern R. Co. v. Metzler (Cal. App.), 130 Pac. 1192. Baer, 39 Tex. Civ. App. 16, 86 S. VV. ^ Stevens v. State, 84 Nebr. 759, 122 653 ; Amsden v. Atwood, 69 Vt. 527, N. W. 58. 38 Atl. 263; Howe v. West Seattle = Alabama State Land Co. v. Sla- Land &c. Co., 21 Wash. 594, 59 Pac ton, 120 Ala. 259, 24 So. 720, 74 Am. 495 ; Lyle v. McCormick Harvesting St. 31 ; Stern v. Simons, 77 Conn. Mach. Co., 108 Wis. 81, 84 N. W. 18, 150, 58 Atl. 696; Thompson v. O'Con- 51 L. R. A. 906. nor, lis Ga. 120, 41 S. E. 242; Smythe 'Bedford v. Penny, 58 Mich. 424, v. Evans, 209 111. 376, 70 N. E. 906; 25 N. W. 381. Hewlett V. Dilts, 4 Ind. App. 23, 30 ' Stuart v. Mitcham, 135 Ala. 546, N. E. 313; Kansas Ins. Co. v. Berry, 33 So. 670; Western Coal &c. Co. v. 8 Kans. 159; Twomey v. Linnehan, Jones, 75 Ark. 76, 87 S. W. 440; Cook 161 Mass. 91, 36 N. E. 590; Bedford v. Los Angeles &c. Elec. R. Co., 134 v. Penny, 58 Mich. 424, 25 N. W. 381; Cal. 279, 66 Pac. 306; Denver Consol. McManus v. Metropolitan St. R. Co., Elec. Co. v. Lawrence, 31 Colo. 116 Mo. App. 110, 92 S. W. 176; 301, 73 Pac. 39; Tiesler v. Norwich, Wittleder v. Citizens' Elec. Illumi- 73 Conn. 199, 47 Atl. 161 ; Washington nating Co., 47 App. Div. 410, 62 N. &c. R. Co. v. Lukens, 32 App. D. C. y. S. 297; Vanderbilt v. Brown, 128 442; Maultsby v. Boulware, 47 Fla. N. Car. 498, 39 S. E. 36; Friedman 194, 36 So. 713; Southern Cotton Oil v. Weisz, 8 Okla. 392, 58 Pac. 613; Co. v. Skipper, 125 Ga. 368, 54 S. E. Earle v. Poat, 63 S. Car. 439, 41 S. 110; North v. Woodland, 12 Idaho E. 525, 90 Am. St. 681; Knoxville 50, 85 Pac. 215, 6 L. R. A. (N. S.) n? REQUESTS. 1 02 Where a charge as given is fair and presents fully to the jury the issues involved in the cause, further instructions are unneces- sary and requests therefor may be refused.'' So, in an action brought by a physician to recover on quantum meruit for pro- fessional services, an instruction that the plaintiff was not barred from recovering a larger sum by reason of having originally pre- sented his bill for fifty dollars was rendered unnecessary by an instruction to award such amount, not in excess of one hundred 921; Inlet Swamp Drainage Dist. v. Anderson, 257 111. 214, 100 N. E. 909 ; Heltonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N. E. 529, 46 Am. St. 368; Thompson v. National Cable &c. Co. (Iowa), 141 N. W. 912; Evans v. La- feyth, 29 Kans. 736; Bonte v. Postel, 109 Ky. 64, 58 S. W. 536, 51 L. R. A. 187; Bernard v. Merrill, 91 Maine 358, 40 Atl. 136; McCarty v. Harris, 93 Md. 741, 49 Atl. ,414; Thayer v. Old Colony St. R. Co., 214 Mass. 234, 101 N. E. 368, 44 L. R. A. (N. S.) 1125; Alton v. Meenwenberg, 108 Mich. 629, 66 N. W. 571; Moratzky V. Wirth, 74 Minn. 146, 76 N. W. 1032; Mississippi Central R. Co. v. Hardy, 88 Miss. 732, 41 So. 505; Ty- ler V. Hall, 106 Mo. 313, 17 S. W. 319, 27 Am. St. 327; McCrimmon v. Murray, 43 Mont. 457, 117 Pac. 73; Bryant v. Cunningham, 52 Nebr. 717, 72 N. W. 1054; Bond v. Bean, 72 N. H. 444, 57 Atl. 340, 101 Am. St. 686; Christensen v. Lambert, 67 N* J. L. 341, 51 AtL 702; Pearce v. Strickler, 9 N. Mex. 467, 54 Pac. 748; Lawson _ V. Metropolitan St. R. Co., 166 N. Y. 589, 59 N. E. 1124; Harris v. Atlantic Coast Line R. Co., 132 N. Car. 160, 43 S. E. 598; Ohiiger v. Toledo, 20 Ohio Cir. Ct. 142; St. Louis &c. R. Co. V. Walker, 31 Okla. 494, 122 Pac. 492 ; Pacific Export Co. v. North Pacific Lumber Co., 46 Ore. 194, 80 Pac. 105; Fleming v. Dixon, 194 Pa. 67, 44 At!. 1064; McGowan v. Court of Probate, 27 R. I. 394, 62 Atl. 571, 114 Am. St. 52; Banks v. Southern Exp. Co., 73 S. Car. 211, 53 S. E. 166; Blair v. Croton, 13 S. Dak. 211, 83 N. W. 48; Record v. Chickasaw Cooperage Co., 108 Tenn. 657, 69 S. W. 334; St. Louis Southwestern R. Co. V. Burke, 36 Tex. Civ. App. 222, 81 S. W. 774; Hirabelli v. Daniels (Utah), 121 Pac. 966; Kilpatrick v. Grand Trunk R. Co., 74 Vt. 288, 52 Atl. 531, 93 Am. St. 887; Richmond Trac. Co. v. Wilkinson, 101 Va. 394, 43 S. E. 622; Morrison v. Northern Pac. R. Co., 34 Wash. 70, 74 Pac. 1064; Maxwell v. Cunningham, 50 W. Va. 298, 40 S." E. 499; Warden v. Miller, 112 Wis. 67, 87 N. W. 828; Mutual Life Ins. Co. v. Summers, 19 Wyb. 441, 120 Pac. 185. ° McGarry v. Healey, 78 Conn. 365, 62 Atl. 671; Macon R. &c. Co. v. Barnes, 121 Ga. 443, 49 S. E. 282; Shutt Imp. Co. V. Thompson, 109 111. App. 540; Tucker v. Call, 45 Ind. 31; Chicago &c. R. Co. v. Parks, 59 Kans. 709, 54 Pac. 1052 ; Tevis v. Carter, 28 Ky. L. 749, 90 S. W. 264; Hurd v. Newton, 36 Mich. 35; Bradley v. West, 60 Mo. 59; Rommeney v. New York, 49 App. Div. 64, 63 N. Y. S. 186; Carey v. Buckley, 192 Pa. St. 276, 43 Atl. 1019 ; San Antonio &c. R. Co. V. Dickson, 42 Tex. Civ. App. 163, 93 S. W. 481; Holland v. Oregon Short Line R. Co., 26 Utah 209, 72 Pac. 940. I02 INSTRUCTIONS RULES. 158 dollars, as the services were shown by the evidence to be worth." So, also, where the jury are informed, in an action for personal injuries, that if plaintifif was negligent he could not recover, it is sufficient to cover this phase of the case and there is no error in refusing to instruct that if both plaintiff and defendant were neg- ligent, then plaintiff was not entitled to recover.' The request should likewise be refused where the correct parts of the request have been given in the general charge.^ It is very clear that the request should be refused where it is fully and correctly covered by an instruction given at request of the party himself.® The principle that additional instructions may be refused where the subject-matter is fully covered in previous instructions applies also to special charges,^" and in criminal cases.^^ Where the ' Ladd V. Witte, 116 Wis. 35, 92 N. W. 365. ' St. Louis' Southwestern R. Co. v. Byers (Tex. Civ. App.), 70 S. W. 558. 'Doyle V. Doyle, 257 111. 229, 100 N. E. 950; Southern R. Co. v. Ad- ams (Ind. App.), 100 N. E. 773; Knecht v. Mooney, 118 Md. 583, 85 Atl. 775; Dobson v. Duncan, 90 S. Car. 414, 73 S. E. 875. " McMillen v. Elder, 160 Mo. App. 399, 140 S. W. 917. " Salem v. Goller, 76 Ind. 291 ; Far- rell V. Dubuque, 129 Iowa 447, 105 N. W. 696, 3 L. R. A. (N. S.) 496; Atchison &c. R. Co. v. Morrow, 4 Kans. App. 199, 45 Pac. 956; Cincin- nati &c. R. Co. V. Curd, 28 Ky. 177, 89 S. W. 140; Hopkins v. O'Leary, 176 Mass. 258, 57 N. E. 342; Hoyt v. Jeffers, 30 Mich. 181 ; Woods v. Wa- bash R. Co., 188 Mo. 229, 86 S. W. 1082; Costello v. Kottas, 52 Nebr. 15, 71 N. W. 950; Norton v. North Carolina R. Co., 122 N. Car. 910, 29 S. E. 886; Gulf &c. R. Co. v. Maug- ham, 29 Tex. Civ. App. 486, 69 S. W. 80. " Holt V. United States, 218 U. S. 245, 31 Sup. Ct. 2, 54 L. ed. 1021; Bennett v. United States, 227 U. S. 333, 33 Sup. Ct. 288, 57 L. ed. 531, Ann. Cas. 1913 E, 911; Sills v. State, 2 Ala. App. 73, 57 So. 89; Hurley V. Territory, 13 Ariz. 2, 108 Pac. 222; Williams V. State, 100 Ark. 218, 139 S. W. 1119; People v. Crosby, 17 Cal. App. 518, 120 Pac. 441 ; Ryan v. Peo- ple, 50 Colo. 99, 114 Pac. 306, Ann. Cas. 1912 B, 1232; State v. Burns, 82 Conn. 213, 72 Atl. 1083 ; Gilbert v. State, 61 Fla. 25, 55 So. 464; People V. Weil, 244 111. 176, 91 N. E. 112; Malone v. State, 176 Ind. 338, 86 N. E. 1; State v. Becker (Iowa), 140 N. W. 201; International Harvester Co. V. Commonwealth, 147 Ky. 564, 144 S, W. 1064; State v. Williams, 129 La. 795, 56 So. 891, Ann. Cas. 1913 B, 798; People v. Auerbach (Mich.), 141 N. W. 869; State v. Martin, 226 Mo. 538, 126 S. W. 442; State V. Van, 44 ]\Iont. 374, 120 Pac. 479; Nixon v. State, '92 Nebr. 115, 138 N. W. 136; People v. Fisher, 136 App. Div. 57, 120 N. Y. S. 659; State v.. Leak, 156 N. Car. 643, 72 S. E. 567; State v. Hardin, 63 Ore. 305, 127 Pac. 789; State v. Harbour, 27 S. Dak. 42, 129 N. W. 565, Ann. Cas. 1913 D, 324; State v. Cline, 27 S. 159 REQUESTS. § 103 court in a criminal case has fairly charged the law of reasonable doubt it is not error to refuse to give a requested charge on the presumption of innocence.^^ And so it has been held in the ab- sence of a request that the defense of alibi was sufhciently em- braced in a general charge on the presumption of innocence/' But where the crucial issues are not pointed out, or where the law applicable thereto is not explained, additional instructions with this end in view should be given, upon request.^* § 103. Refusal of inconsistent requests. Where a party to a cause of action requests instructions which are inconsistent with each other, the court is at liberty to choose between them and reject instructions in conflict with those approved and given.'^' The rule is the same where the requested instructions are in conflict with correct principles announced in the main charge given by the court." In the absence of any question of public policy or an express statute, a party to a cause of action is concluded by the principles of law announced in the instructions which he offers,^^ and where he requests a number of instructions, some of which are in con- Dak. 573, 132 N. W. 160; Warren v. Aetna Indemnity Co. v. George A. State (Tex. Civ. App.), 149 S. W. Fuller Co., Ill Md. 321, 1i Atl. 738; 130; State v. Smails, 63 Wash. 172, Tetherow v. St. Joseph &c. R. Co., lis Pac. 82; State v. Cherry Point 98 Mo. 74, 11 S. W. 310, 14 Am. St. Fish Co., 72 Wash. 420, 130 Pac. 617; Missouri Pac. R. Co. v. Fox, 449; State v. Holcomb, Ti Wash. 652, 60 Nebr. 531, 83 N. W. 744; Ramsey 132 Pac. 416; State v. Huffman, 69 v. Nat. Cont. Co., 49 App. Div. 11, W. Va. 770, 73 S. E. 292; Reismeyer 63 N. Y. S. 286; Griesemer v. Sub- V. State, 148 Wis. 593, 135 N. W. 153. urban Elec. Co., 224 Pa. 328, 11 Atl. "^ State V. Snider, 151 Mo. App. 699, 340; Lazzelle v. Napel, 1 W. Va. 43. 132 S. W. 299. " Fitzsimmons-Kreider Mill. Co. v. "Myers v. State (Tex. Cr. App.), Millers' Mut. Fire Ins. Co., 161 111. 144 S. W. 1134. App. 542; Missouri &c. R. Co. v. "Western Union Tel. Co. v. Mor- Reno (Tex. Civ. App.), 146 S. W. ris, 105 Fed. 49. 207. ''Healey v. Rupp, 28 Colo. 102, 63 "Tetherow v. St. Joseph &c. R. Pac. 319; Chicago City R. Co. v. Co., 98 Mo. 74, 11 S. W. 310, 14 Am. Taylor, 170 111. 49, 48 N. E. 831; St. 617. § 103 INSTRUCTIONS RULES. l6o flict with the others, the court may reject those which are not in harmony with the ones given.^^ Nor may the party be heard to complain where a second instruction repugnant to one given at his request is refused, even though the second is a correct state- ment of the law applicable to the case.^^ Where instructions given at the request of one of the parties submit to the jury an issue of fact as to care or negligence, the court will be justified in refusing to submit, separately, a group of the same facts in- volved in a form which assumes the issue arising therefrom to be one of law only.^" So, where instructions are given at the re- quest of the defendant which assume the existence of facts neces- sary to make out a case for the plaintiff, there is no error in re- fusing another of defendant's requested instructions that "the evidence in this case would not justify a verdict for the plaintiff and your verdict must be for the defendant."" So, where a party has requested a charge that an action was ex contractu the court properly refused a subsequent request that the action was ex delicto. ^^ The court may refuse a request of a submission of facts which are merely the converse of those in an instruction already given. ^^ "Missouri Pac. R. Co. v. Fox, 60 sey v. Nat. Cont. Co., 49 App. Div. Nebr. 531, 83 N. W. 744. 11, 63 N. Y. S. 286. "Healey v. Rupp, 28 Colo. 102, 63 =' Chicago City R. Co. v. Taylor, Pac. 319. 170 111. 49, 48 N. E. 831. "Tetherow v. St. Joseph &c. R. "= Western Union Tel. Co. v. Grif- Co., 98 Mo. 74, 11 S. W. 310, 14 Am. fith, 161 Ala. 241, SO So. 91. S. 617. In an action for personal ^ Texas Cent. R. Co. v. Perry (Tex. injuries, where the court, at defend- Civ. App.), 147 S. W. 305. Where ant's request, charges that the jury the party has requested a charge us- could not award as damages a sura ing the terms conjunctively, which which would capitalize the plaintiff's was given, he may not thereafter re- yearly losses, a second request to in- quire the court to give a charge us- struct that the jury must consider ing such terms disjunctively without the award in the light of capital to first asking for a withdrawal of the be invested, producing a yearly in- former instruction. Gregory v. Chi- come, it is antagonistic to the first cago &c. R. Co., 147 Iowa 715, 124 and therefore rightly refused. Ram- N. W. 797. CHAPTER VIII. EXCEPTIONS. Section • 104. Clearness of statement of grounds of objection. 105. Timeliness of objections. 106. Particularity in statement of grounds of objection. Section 107. General exceptions to entire charge part of which is cor- rect. 108. Waiver of objections and excep- tions. § 104. Clearness of statement of grounds of objection. Clearness is an essential element of an exception and this requires a clear and definite statement of the grounds of the objection to the charge,^ , Since clearness is essential, a mere statement by the court that "I understand counsel to except to my failure to charge all the requests not charged, and to all modifications of requests," raises no question for review,^ and where an exception sets out neither the words nor the substance of the ruling objected to, it is too vague and indefinite.^ So, an exception to a portion of a sen- tence in the court's charge, apart from its context, is not com- mendable and may be so improper as to justify the reviewing court in ignoring it.* But the mere fact that a portion of a charge is quoted and excepted to will not make the exception too indefinite. If the error is clearly pointed out, it will be sufficient." ^ Reeves v. Allgood, 133 Ga. 835, Q S. E. 82; De Ford v. Johnson, 152 Mo. App. 209, 133 S. W. 393; Ross V. Saylor, 39. Mont. 559, 104 Pac. 864; Russell V. Olson, 22 N. Dak. 410, 133 N. W. 1030, 37 L. R. A. (N. S.) 1217. Not sufficient exception to make cas- ual remark that the ruling was erro- neous. Gerber v. Aetna Indemnity Co., 61 Wash. 184, 112 Pac. 272. ''Henderson v. Bartlett, 32 App. Div. 435, 53 N. Y. S. 149. 'Atkins V. Field, 89 Maine 281, 36 Atl. 375, 56 Am. St. 424. As a gen- eral rule an exception should recite the instruction so as to give the court an opportunity to correct or modify it. Birmingham R. &c. Co. V. Cockrum (Ala.), 60 So. 304. * Indiana Fruit Co. v. Sandlin, 125 Ga. 222, 54 S. E. 65. " Norris v. Clinkscales, 59 S. Car. 232, il S. E. 821. l6l 11 — Branson's Inst. loS INSTRUCTIONS RULES. 162 § 105. Timeliness of objections. An objection or an exception must be made within the time fixed by the code or rules governing the matter within the particular jurisdiction or the right to urge error in the charge will be lost.* In most jurisdictions it is required that exceptions shall be taken before the jury retires/ and they come too late after ver- dict.* This is the general rule in criminal cases.° In New York and Washington, however, it is held that exceptions to a charge may be taken at any time before the verdict has been returned, even though the jury has retired.^" In any case whether civil or criminal the exception would come too late where taken after the filing of the motion for new trial." As a general rule the giving of oral instead of written instructions is waived by failure to object ajid take an exception at the time.^^ Where an isolated sentence in the charge is so worded that it may be misconstrued. " Colgan V. Farmers' &c. Bank, 59 Ore. 469, 114 Pac. 460. 'Mann v. Dempster, 181 Fed. 76; Wells, Fargo & Co. v. Zimmer, 186 Fed. 130 ; Jameson v. Weld, 93 Maine 34S, 45 Atl. 299; Maxwell v. Massa- chusetts Title Ins. Co., 206 Mass. 197, 92 N. E. 42; Pitman v. Mauran, 69 N. H. 230, 40 Atl. 392; St. Louis &c. R. Co. V. Fling, 36 Okla. 25, 127 Pac. 473. 'Brent v. Chas. H. Lilly Co., 202 Fed. 335; Neff v. Masters, 173 Ind. 196, 89 N. E. 846; State v. Harris, 120 N. Car. 577, 26 S. E. 774; Phifer V. Cabarrus County, 157 N. Car. 150, 72 S. E. 852; Newport News &c. R. Co. V. Bradford, 99 Va. 117, 37 S. E. 807. " Morrison v. State, 42 Fla. 149, 28 So. 97; State v. Bush, 117 La. 463, 41 So. 793; State v. Mitchell, 127 La. 270, 53 So. 561 ; People v. Spohr, 206 N. Y. 516, 100 N. E. 444; Common- wealth V. Razmus, 210 Pa. 609, 60 Atl. 264; Gould v. State (Tex. Cr. App.), 146 S. W. 172. But see State V. Pirlot, 20 R. I. 273, 38 Atl. 656. " Polykranas v. Kraijsz, 73 App. Div. 583, n N. Y. S. 46; Patterson V. State, 4 Okla. Cr. 542, 113 Pac. 216; State v. Neis, 68 Wash. 599, 123 Pac. 1022. " Clark V. State, 59 Fla. 915, 52 So. 518; State v. Wright, 104 La. 44, 28 So. 909; Nagle v. Laxton, 191 Mass. 402, 11 N. E. 719; Turrittin v. Chicago &c. R. Co., 95 Minn. 408, 104 N. W. 225 ; State v. De Witt, 152 Mo. 76, 53 S. W. 429; Bradstreet v. Grand Island Banking Co., 89 Nebr. 590, 131 N. W. 956; State v. Peeples, 71 Wash. 451, 129 Pac. 108. "Taylor v. Kidd, 72 Wash. 18, 129 Pac. 406. Filing with clerk after trial too late. Gerber v. Aetna In- demnity Co., 61 Wash. 184, 112 Pac. 272. And so where the court, in charging orally, errs in stating the contentions of counsel, attention should be directed thereto at . the time in order to preserve an excep- tion. Hatchell v. Chandler, 62 S. Car. 380, 40 S. E. m. 163 EXCEPTIONS. § 106 counsel should call the attention of the court to the matter before the jury retires.^^ § 106. Particularity in statement of grounds of objection. The particular ground of objection to an instruction must be pointed out, so that the court may have an opportunity to correct the error, if any is committed. General and too com- prehensive exceptions prevent this and will be disregarded by reviewing courts.^* A general exception is faulty in failing to preserve any definite question for review.^^ Thus, where an exception is taken by ar- ranging in divisions a number of extracts from the charge, with- out indicating any specific error, the appellate court will be justi- fied in declining to consider it.^" So, where the trial court re- fuses five requested instructions and two special findings of fact, a single exception to cover all will not lie.^^ So, also, it is too general to say that the instructions assume the existence of facts which there was no evidence to support.^* An exception to an instruction as given does not raise the question whether there was error in 'failing to give another or further instructions.^" The ground of the exception should be specifically shown ;^° an " Sembum v. Duluth Iron Range " Continental Inv. &c. Society v. R. Co., 121 Minn. 439, 141 N. W. 523. Schubnell, 63 111. App. 379. "Chapman v. Capital Trac. Co., 37 >' Harris v. Smith, 71 N. H. 330, App. D. C. 474; Harris v. Smith; 71 52 Atl. 854. N. H. 330, 52 Atl. 854. "Lang v. Clark, 85 Vt. 222, 81 Atl. "Ryan v. Washington &c. R. Co., 625. 8 App. D. C. 542; Continental Inv. ""St. Louis &c. R. Co. v. Dunn, 94 &c. Society v. Schubnell, 63 111. App. Ark. 407, 127 S. W. 464; Dierks Lum- 379; Savage v. Marlborough St. R. ber &c. Co. v. Coflfman, 96 Ark. 505, Co., 186 Mass. 203, 71 N. E. 531; 132 S. W. 654; Townsley v. Yentsch, Barton v. ShuU, 70 Nebr. 324, 91 N. 98 Ark. 312, 135 S. W. 882; St. Louis W. 292; Harris v. Smith, 71 N. H. &c. R. Co. v. Prince, 101 Ark. 315, 330, 52 Atl. 854; Ebenreiter v. Dahl- 142 S. W. 499, Ann. Cas. 1913 E, man, 19 Misc. 9, 42 N. Y. S. 867; 866; Taylor v. Evans, 102 Ark. 640, Burnett v. Wilmington &c. R. Co., 145 S. W. 564; Emerson v. Stevens 120 N. Car. 517, 26 S. E. 819; Gable Grocer Co., 105 Ark. 575, 151 S. W. v. Rauch, 50 S. Car. 95, 27 S. E. 555 ; 1003; Rittenhouse v. Bell (Ark.), Luce V. Hassam, 76 Vt. 450, 58 Atl. 153 S. W. 1111; State v. Tripp, 84 725; Lee v. Hammond, 114 Wis. 550, Conn. 640, 81 Atl. 247; Ludwig v. 90 N. W. 1073, 91 Am. St. 934. Blackshere, 102 Iowa 366, 71 N. W. '"Hampton v. Ray, 52 S. Car. 74, 356; Emmons v. Alvord, 177 Mass. 29 S. E. 537. 466, 59 N. E. 126; Emery v. Boston lOJ INSTRUCTIONS RULES. 164 exception to a charge as a whole is untenable if any of it is cor- rect.^^ The rule is the same in criminal cases. The exception must point out the particular point claimed to be erroneous." The court's attention, among other things, must be called to such defects as vagueness,^^ inaccuracies of statement,^* argumenta- tiveness,^** and that an instruction is misleading,^* or "falls short of stating the law."" Objection to form as distinguished from substance must be specifically made.^* A general objection is not sufficient to call the attention of the court to the fact that words used in the instruction should be defined.^" § 107. General exceptions to entire charge part of which is correct. A general exception to an entire charge is not tenable and wiU be disregarded where any of the instructions is cor- rect.^" The rule is the same where there is a general excep- &c. R. Co., €] N. H. 434, 36 Atl. 367; Hampton v. Norfolk &c. R. Co., 120 N. Car. 534, 27 S. E. 96, 35 L. R. A. 808; Ralph v. Taylor, 33 R. I. 503, 82 Atl. 279; Carter v. Kaufman, 67 S. Car. 456, 45 S. E. 1017. ■^ Roberts v. Baldwin, 155 N. Car. 276, 71 S. E. 319. ^McGhee v. State (Ala.), S9 So. 573; Jackson v. State, 94 Ark. 169, 126 S: W. 843 ; Goff v. State, 89 Nebr. 287, 131 N. W. 213; State v. Bowman, 152 N. Car. 817, 67 S. E. 1058; State V. Wagner (R. I.), 86 Atl. 147; State V. Crosby, 88 S. Car. 98, 70 S. E. 440; Walker v. State (Tex. Cr. App.), 151 S. W. 822; State v. Riley (Utah), 126 Pac. 294. A single ob- jection to a part of a charge involv- ing several propositions, some of which are correct, is properly over- ruled. Sanders v. State (Ala.), 61 So. 336. An exception to a charge must distinctly point out the particu- lar part thereof claimed to be erro- neous and exceptions will be disre- garded where the accused by his exceptions covers some instructions that were erroneous and some that were not. State v. Bowman, 152 N. Car. 817, 67 S. E. 1058. ■"■St. Louis &c. R. Co. V. Walker, 93 Ark. 457, 125 S. W. 135, 27 L. R. A. (N. S.) 914, 137 Am. St. 95. " Hamburg Bank v. George, 92 Ark. 472, 123 S. W. 654. "^ Goldstein v. Smiley, 168 111. 438, 48 N. E. 203. =' St. Louis &c. R. Co. v. Lamb, 95 Ark. 209, 128 S. W. 1030; Shattuck v. Shattuck, 118 Minn. 60, 136 N. W. 409; Jeffress v. Norfolk- Southern R. Co., 158 N. Car. 215, 12, S. E. 1013. "Baltimore &c. R. Co. v. Spauld- ing, 21 Ind. App. 323, 52 N. E. 410. ""Ft. Smith &c. R. Co. v. Messek, 96 Ark. 243. 131 S. W. 686. ^ Kirby v. Lower, 139 Mo. App. 677, 124 S. W. 34; Grow v. Utah Light &c. Co., 37 Utah 41, 106 Pac. 514. '"Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854, 67 Am. St. 20; Sheffield Co. v. Harris (Ala), 1 6s EXCEPTIONS. § 107 tion to the refusal of a series of requested instructions and any of them are unsound.'^ An exception to instructions as a whole and to each clause sep- arately is unavailing unless the whole charge is bad.'^ An excep- tion in the" following language : "Plaintiff excepts to all the in- structions given by the court, and to the refusal of the instructions asked," is too general to present any question for review, if any part of the charge is correct.^' In a case where three charges were written on the same sheet of paper and numbered, but not torn apart, and the court refused them collectively, it was held that a general exception to such refusal would not lie if any one of the charges were correctly refused.^* But the rule that a gen- 61 So. 88; Sulser v. Sayre, 4 Ala. App. 452, 58 So. 758; Young v. Stev- enson, 75 Ark. 181, 86 S. W. 1000; Adams Exp. Co. v. Aldridge, 20 Colo. App. 74, n Pac. 6; Oats v. Jones, 136 Ga. 704, 71 S. E. 1097; State v. Ray, 146 Ind. 500, 45 N. E. 693; Habich v. University Park Bldg. Co., 177 Ind. 193, 97 N. E. 539; Chicago &c. R. Co. V. Coon, 48 Ind. App. 675, 93 N. E. 561 ; Standard Life &c. Ins. Co. V. Davis, 59 Kans. 521, 53 Pac. 856 (18 distinct instructions, many of which were unobjectionable — gen- eral objection) ; Carter v. Carter, 6 Kans. App. 923, 50 Pac. 948; Tupper v. Kilduff, 26 Mich. 394; Bennett v. McDonald, 52 Nebr. 278, 72 N. W. 268; Hagin v. Collins, IS N. Hex. 621, 110 Pac. 840, 30 L. R. A. (N. S.) 391, Ann. Cas. 1912 C, 81 ; Bro- zek v. Steinway R. Co., 161 N. Y. 63, 55 N. E. 395; Shaffer v. Cincin- nati &c. R. Co., 14 Ohio Cir. Ct. 488; Glaser v. Glaser, 13 Okla. 389, 74 Pac. 944; Reimers v. Pierson, 58 Ore. 86, 113 Pac. 436; Hahn v. Mac- kay, 63 Ore. 100, 126 Pac. 991 ; Smith V. Columbus Buggy Co. (Utah), 123 Pac. 580; Needham v. Boston &c. R. Co., 82 Vt. 518, 74 Atl. 226; Usher v. Severance, 86 Vt. 523, 86 Atl. 741 ; Rush V. Spokane Falls &c. R. Co., 23 Wash. 501, 63 Pac. 500; Ocheltree V. McClung, 7 W. Va. 232; Elwell V. Bosshard, 151 Wis. 46, 138 N. W. 46, 42 L. R. A. (N. S.) 535. It is the rule in criminal cases that an exception to an entire charge will not avail if the charge contains a single correct proposition. Ragsdale V. State, 134 Ala. 24, 32 So. 674; Darden v. State, 73 Ark. 315, 84 S. W. 507; Thomas v. State, 47 Fla. 99, 36 So. 161 ; State v. Hall, 132 N. Car. 1094, 44 S. E. 553; Hayes v. State, 112 Wis. 304, 87 N. W. 304. "Otis Elevator Co. v. Luck, 202 Fed. 452 ; Pearson v. Adams, 129 Ala. 157, 29 So. 'in ; Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612; Randall V. Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221; South Omaha v. Powell, SO Nebr. 798, 70 N. W. 391 ; Barker v. Cunard S. S. Co., 157 N. Y. 693, 51 N. E. 1089; Haneter v. Marty, 150 Wis. 490, 137 N. W. 761. ''Savage v. Milum, 170 Ala. 115, 54 So. 180. '' Hall v. Needles, 1 Ind. Ter. 146, 38 S. W. 671. "Pearson v. Adams, 129 Ala. 157, 29 So. 911. §io8 INSTRUCTIONS RULES. 1 66 eral exception will not avail where part of an instruction is cor- rect is without application where the instruction authorizes the wrong application of that part of the instruction which is cor- rect." § 108. Waiver of objections and exceptions. An objection or exception will be considered as waived where the party entitled to object to the same fails to do so or by his conduct shows an intention to abandon the right. "^ Instructions not excepted to become the law of the case.'^ An instruction is regarded as accepted where there is no exception after modification."^ Where an instruction which is erroneous is given by consent of both parties, neither can be heard to com- plain of another instruction which is open to the same objection/' So, where a party fails to except to instructions given, he is pre- cluded, upon review, from complaining of error on the part of "'Melcher v. Beeler, 48 Colo. 233, 110 Pac. 181, 139 Am. St. 273. "Evins V. St. Louis &c. R. Co., 104 Ark. 19, 147 S. W. 452; State V. Huffman, 69 W. Va. 770, 73 S. E. 292 (criminal case). Party desir- ing fuller instrliction on a particular issue after presenting request must except to the refusal of the court so to charge. Robinson v. Insurance Co., 198 N. Y. 523, 91 N. E. 373. Where plaintiff requests that a charge be reduced to writing, but the court proceeds to charge orally, no objec- tion to such procedure being made at the time, the plaintiff "excepting at the conclusion of the charge, and where the charge is then transcribed in longhand by the reporter at the court's direction, without objection from plaintiff, and is then delivered to the jury, the plaintiff can not com- plain of irregularities, for, if there were any, he will be held to have waived them. Kirby v. Berguin, IS S. Dak. 444, 90 N. W. 856, 1% L. R. A. 811, 91 Am. St. 698. " Schweinberg v. Altman, 145 App. Div. 377, 130 N. Y. S. 37; Grimm V. Wandell, 140 N. Y. S. 391 ; Lallier v. Pacific Elev. Co., 25 S. Dak. 572, 127 N. W. 558, Zl L. R. A. (N. S.) 206. ""Torkelson v. Minneapolis &c. R. Co., 117 Minn. 73, 134 N. W. 307; Williams v. State, 95 Miss. 671, 49 So. 513 (criminal case). Error is waived by asking a modification of an instruction which does not cover the error. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048. =° Boecker v. NaperviUe, 166 111. 151, 48 N. E. 1061. Error in giving a re- quested instruction submitting the question of contributory negligence, when, as a matter of law, there was such negligence, is waived by defend- ant in requesting an instruction con- taining the same error. Chicago &c. R. Co. V. Smith, 94 Ark. 524, 127 S. W. 715. 167 ' EXCEPTIONS. § 108 the trial court in refusing requests conflicting therewith.*" So, where a charge is on facts conceded by a party to be true, he will be estopped from complaining of the court's action in giving it.*^ So, one predicating his recovery on a theory that he was not guilty of contributory negligence may not complain of an in- struction ignoring the last clear chance doctrine, for that doctrine implies contributory negligence.*^ But the failure of the defend- ant to object to an erroneous instruction on the measure of dam- ages has been held not to waive an exception to the reception of incompetent evidence as to such damages.*^ "Delmonica Hotel Co. V. Smith, 112 "Welland v. Metropolitan St. R. Iowa 659, 84 N. W. 906. Co., 144 Mo. App. 205, 129 S. W. 441. " Bedenbaugh v. Southern R. Co., *" Smith v. Appleton, 155 App. Div. 69 S. Car. 1, 48 S. E. 53. 520, 140 N. Y. S. 565. PART TWO. FORMS OF INSTRUCTIONS. CHAPTER IX. ACCORD AND SATISFACTION. Section Section 109. Receipt of less amount than 111. Settlement by check. debt. ' 112. Settlement by note. 110. Mistake as to amount. § 109. Receipt of less amount than debt. — (1) The court instructs the jury that a person can not pay and satisfy a debt by the payment of a sum less than the debt ; but if you believe from the evidence that the plaintifif, in order to avoid a suit, of the re- sult of which he is doubtful, agreed to receive any sum in full satisfaction of the amount he claimed to be due on said account, and upon such agreement the defendant paid the sum agreed upon, then such agreement and payment would completely dis- charge the defendant from all liability.^ (2) The court instructs the jury that where there is a bona fide dispute between the maker and payee of notes as to the date from which interest is payable under the terms of the notes which are ambiguous, and the maker pays the amount he admits to be due on the express condition that the notes and mortgages se- curing the same shall be canceled and surrendered, and the payee accordingly receives the money and cancels and surrenders the mortgages, there is an accord and satisfaction.^ 'Ogborn v. Hoffman, 52 Ind. 439. Pac. 698. Payment to officer of See chaper 35, on Compromise and payee corporation, see Maloney Mer- Settlement. cantile Co. v. Dublin Quarry Co. "Storch V. Dewey, 57 Kans. 370, 46 (Tex. Civ. App.), 107 S. W. 904. 168 169 ACCORD AND SATISFACTION. § 112 § 110. Mistake as to amount. — The court instructs the jury that if they find from the evidence that at the time of the $ payment there was a larger sum actually due, and that there was no controversy between the parties as to the amount, or that they or either of them was mistaken as to the amount then due, then a release and satisfaction of the whole debt, based upon such mistake, or in the absence of any dispute as to a larger sum being due, would not be a release or satisfaction of the unpaid portion of the debt.^ § 111. Settlement by check. — The court instructs the jury that if you find from the evidence that the defendant did on the day of last, or on some other day prior to the com- mencement of this action, give the plaintiff a check for a certain sum therein stated, then telling him it was in full settlement, and that the plaintiff cashed such check and used the money, your verdict will be for the defendant, no cause of action.* § 112. Settlement by note. — The court instructs the jury that if you should find from the evidence that, at the time said implements were invoiced by H., if they were so invoiced, that the said invoice was made for the purpose of a final settlement, and that a settlement was had, and you further find that H. was acting for said company, with the express authority from said company to settle said note, and did in fact effect a settlement with T. W. S., then you will find for defendants T. W. S. and R. E. T. ; but should you find that H. only had authority to col- lect cash on said note and there was no settlement, then you will find for the plaintiff.^ 'Byrnes v. Byrnes, 92 Minn. 73, ° Lemond v. Smith (Tex. Civ. 99 N. W. 426. App.), 149 S. W. 751. *Quinlan v. Heyboer, 171 Mich. 228, 137 N. W. 64. CHAPTER X. ACCOUNT STATED. Section Section 113. Nature of account stated. 116. Acquiescence in account by si- 114. Formal requisites. lence. lis. Acquiescence in account from 117. Submission of claims of parties, lapse of time. § 113. Nature of account stated. — The court instructs the jury that an account stated or an account settled is when the par- ties mutually agree to the correctness of the account between them, and the balance, as ascertained to be due to either. The general rule is that when parties have accounts against each other, and a statement of the account is made out by one party, and presented to the other, and the latter expressly assents to its correctness, the law will regard it as a stated or settled account and it will be binding upon both parties.^ § 114. Formal requisites. — The court instructs the jury that no particular form of words is necessary to constitute a set- tlement in law, nor is it necessary for the plaintiff to prove a promise to pay the balance found to be due, provided a balance be found in his favor, as hereafter explained.^ § lis. Acquiescence in account from lapse of time. — The court instructs the jury that what will amount to a stated ac- count from the presumed acquiescence of the plaintiff, arising from lapse of time and his failure to object to the same within a reasonable time, depends upon the circumstances and nature of the transaction and habits of business, and it is for you to de- termine from all the circumstances of the case, whether plaintiff ^ Brewer v. Wright, 2S Nebr. SOS, rome, S4 N. Y. 480 ; Bussey v. Gant, 41 N. W. 159. For other instructions 10 Humph. (Tenn.) 238. on this subject see Stenton v. Je- 'Brewer v. Wright, 25 Nebr. 305, 41 N. W. 159. 170 171 ACCOUNT STATED. §117 acquiesced in the statement rendered by the defendant by lapse of time.' § 116. Acquiescence in account by silence. — ^The court in- structs the jury that if you believe from the evidence in this case that the plaintiff received from time to time, from the defendant, statements of his account with the defendant, and was thereby afforded the opportunity to see the items in his bill of particulars mentioned, charged against him, and remained silent, and did not object to the charge of such items against him within a rea- sonable time, after each of such statements were so rendered, then the defendants had the right to infer acquiescence of the plaintiff in the correctness of such charges, afid the plaintiff is now estopped to deny the correctness of such items to which he did not object in proper time; and as to all such items of the plaintiff's account, you must find for the defendant.* §117. Submission of claims of parties. — The court in- structs the jury that if you find the plaintiff entitled to recover, you will say in what sum, and whatever sum you find, you will add interest to it at per cent, for years and days. The recovery can not exceed the amount claimed by the plaintiff — $ . You may look^it over, and if you say that the plaintiff is entitled to recover by a preponderance of the evidence, but a smaller sum than that, you will make the sum whatever it should be under the testimony. There is no claim here on the part of the defendants for any lesser sum in figures. There is a denial that any such agreement was made, and the further claim that they never knew the amount for which a note was to be given even. They deny that they ever agreed to give any such note. Your verdict, if for the plaintiff, will be, "We find for the plain- tiff in such a sum."' 'Millard v. Bennett (Iowa), 139 stated, with reference to the hurden N. W. 914. of proving a special contract, see * Shrewsbury v. Tufts, 41 W. Va. Cusick v. Boyne, 1 Cal. App. 643, 82 212, 23 S. E. 692. For other instruc- Pac. 985. For instructions properly tions on this subject see White v. refused, see Syson v. Hieronymus, Hampton, 10 Iowa 238. 127 Ala. 482, 28 So. 967, 85 Am. St. "Wood V. O'Callaghan, 14Q Mich. 137, and McCarty v. Harris, 93 Md. 598, 104 N. W. 36. For another in- 741, 49 Atl. 414. struction on the subject of account CHAPTER XI. ACCRETIONS. Section Section 118. Meaning of term. 119. Title to accretions. § 118. Meaning of term. — The court instructs the jury- that the term "accretion," as used in the instructions in this case, means portions of soil added to that ah'eady in possession of the owner by gradual deposit caused by a change in the bed of the river and that accretion belongs to the owner of the land, and it makes no difference whether the accretions were formed before or after the ownership has accrued, and that ownership may be acquired by adverse possession as well as by deed.^ § 119. Title to accretions. — The court instructs the jury that under the law of this state that persons owning land on or bounded by the Mississippi river own to the water's edge, and when the water recedes gradually the land is made thereby, the owner of the land bounded by the river is the owner of the land so made, and such owner's rights to such made land remain equal to his river front, and such riparian rights can not be encroached upon by adjoining owners so running their boundary lines as to diminish such river front or accretions.^ 'Benne v. Miller, 149 Mo. 228, 50 'Benne v. Miller, 149 Mo. 228, SO S. W. 824. S. W. 824. 172 CHAPTER XII. ADJOINING LANDOWNERS. Section Section 120. Ordinary care in making exca- 121. Damages for injuries in con- vation. struction of tunnel. § 120. Ordinary care in making excavation. — The court instructs the jury that the adjacent owner may excavate his own land for such lawful purposes as he sees fit, provided he digs with ordinary care; and if in so doing the earth gives away, and a house upon the adjacent land falls by reason of the additional weight placed upon the natural soil, he is without remedy, pro- vided the adjacent owner use ordinary skill, care, and diligence in digging the excavation, and has used reasonable means to pro- tect the adjacent lands and buildings from falling into the ex- cavation.^ § 121. Damages for injuries in construction of tunnel. — The court instructs the jury that in determining what damages, if any, should be assessed to the plaintiffs by reason of the in- juries to the land, if any were caused by the construction of the tunnel, you have a right to consider the use to which said land was put by the plaintiffs, and what damage, if any, the plaintiffs, S. C. F. and R. H. H. in the one case, and A. M. and P. M. in the other case, will sustain thereby during their leasehold interest in the property.^ ' Gildersleeve v. Hammond, 109 The use to which the land was Mich. 431, 67 N. W. 519, 33 L. R. adapted was proper to be considered A. 46, 63 Am. St. 584. in determining the value of the land ^Farnandis v. Great Northern R. and the damage sustained." Ques- Co., 41 Wash. 486, 84 Pac. 18, S L. tions properly for the jury, see Bona- R. A. (N. S.) 1,086, 111 Am. St. 1027. parte v. Wiseman, 89 Md. 12, 42 Atl. "It is claimed," says the Supreme 918, 44 L. R. A. 482; Barnes v. Mas- Court of Washington, "that this in- terson, 38 App. Div. 612, 56 N. Y. struction permitted the jury to as- S. 939. Error to direct verdict for de- sess damages that were personal to fendant, see Di Raima v. Weinman, the plaintiffs. We do not so construe 13 N. Mex. 226, 82 Pac. 360, 1 L. R the instruction when read in connec- A. (N. S.) 1120. tion with the other instructions. * * * CHAPTER XIII. ADVERSE POSSESSION. Section 122. Essentials of holding or occu- pancy. 123. What is meant by the running of the statute of limitations. 124. Failure of owner to protest. 125. Necessity that possession be hos- tile in its inception. 126. Character of inclosure. 127. Adverse possession as between husband and wife. 128. Eiifect of mistake as to bound- ary. Section 129. Necessity that plaintiff rely on strength of his own title. 130. Tacking possessions. 131. Effect of occupancy of portion of land. 132. Adverse possession of wild land. 133. Evidence that may be considered on question. 134. Presumption of rightful posses- sion. 135. Burden of proof. § 122. Essentials of holding or occupancy. — (1) The court instructs the jury that if they find from the testimony that the possession of tlie property sued for has been open, notorious, ad- verse, and exclusive, in J. H. S. and those to whom she sold, for ten years next before the commencement of the present suit, they must find for defendants.^ (2) The court instructs the jury that if they find from the evidence in this case that J. H. S. and these defendants together have held the lands in controversy openly, notoriously, and ad- versely and exclusively, under a claim of title, from the year , then these defendants have a good title, and the plaintiff can not recover.^ (3) The court instructs the jury that when a party claims to have acquired title to the lands of another by having held pos- session a length of time sufficient to bar the owner from retaking ' Stiff V. Cobb, 126 Ala. 381, 28 So. 402, 85 Am. St. 38. See Eastern Ore- gon Land Co. v. Cole, 92 Fed. 949, 35 C. C. A. 100, for instruction con- taining an approved definition of "adverse possession." For "hostile possession," see HofKne v. Ewings, 60 Nebr. 729, 84 N. W. 93; Taylor v. Hover, 11 Nebr. 97, 108 N. W. 149. " Stiff V. Cobb, 126 Ala. 381, 28 So. 402, 85 Am. St. 38. 174 175 ADVERSE POSSESSION. § 122 possession, he must, to succeed, show that his possession is of that exclusive, permanent, open, hostile and adverse character as to put the owner in the position of failing to assert his rights, knowing, or having reason to know, they were encroached upon, for the full period of years.* (4) The court instructs the jury that if you believe from the evidence that the defendant, S. H., not less than ten years prior to the commencement of this suit, entered into possession of the lands in controversy, and cultivated said lands or fenced the same, or erected improvements of any kind thereon, or did other acts of such a character as to clearly show that he was occupying said lands and claiming the same as his own, and during all of said ten years continued to so occupy said lands, claiming during all of said time to be the owner of the same, and never during any of said period of ten years abandoning said lands, but during all of said time continued openly, notoriously, adversely, and exclusively to occupy and claim the same as his lands, then you are instructed that said acts on the part of said defendant, H., would constitute adverse possession, within the meaning of the law, and would entitle the defendant to a verdict at your hands. But if the defendant, H., has failed to establish any of said acts by a preponderance of the evidence, your verdict should be for the plaintiff.* (5) The court instructs the jury that if they find from the evidence that J. S. has held exclusive, open, and adverse posses- sion of the lands in controversy, claiming them as her own, since , then she acquired a complete title, and the plaintiff can not recover in this cause.'' (6) The court instructs the jury that if the said defendant took possession of the land in dispute here sued for under claim of title and held and claimed it as his own adversely and con- tinued so to hold it adversely against all the world, until the ex- 'Hockmoth v. Des Grand Champs, 79 S. W. 941; Taylor v. Hover, 11 71 Mich. 520, 39 N. W. Til. Nebr. 97, 108 N. W. 149. * Hoffine V. Ewings, 60 Nebr. 729, 84 ° Stiff v. Cobb, 126 Ala. 381, 28 So. N. W. 93. For similar instructions, 402, 85 Am. St. 38. see Weller v. Wagner, 181 Mo. 151, § 123 INSTRUCTIONS FORMS. I 76 piration of from the time of his first taking possession, then this action is barred by the statute of limitations.* (7) The court instructs the jury that the working and oper- ating of timber for turpentine purposes may amount to posses- sion which will ripen into prescription, being dependent on the character of the work and the continuity thereof.' (8) The court instructs the jury that if the defendants or those under whom they claimed entered on the land, claiming, occupy- ing and holding it as their own in adverse possession to the ex- tent of well-defined boundaries continuously for years be- fore the suit was brought, the jury should find for them.* (9) The court instructs the jury that whether or not the culti- vation of a turpentine farm upon a tract of land is such an oc- cupancy as may be the basis of a prescriptive title to the land itself is a question of fact, dependent upon the character of the possession, the extent of the visible signs of occupancy and its continuance.® § 123. What is meant by the running of the statute of limi- tations. — The court instructs the jury that you heard the ex- pression in argument about a statute "running;" that the statute will not "run" or will "run." That is a technical term, very plain to the members of the bar, but not so plain to intelligent jurors. But when the expression is used that the' statute will run against some parties it means that the time of the commence- ment of the ten years is referred to; that the operation of the statute is having its effect ; and, if the statute runs for ten years, then the barrier is complete, and the defense is established. It will not, of course, run against those who are unable to stop it, because people can stop the running of a statute. Those who have a claim for the land can assert their claims during the ten years, and, if they do so, they will stop the running of the statute against them. Some can not, in law, stop it. An infant — one under age — can not. A lunatic could hardly do so. And also a party as you have heard spoken of as remainder-man of a life "Sutton V. Clark, 59 S. Car. 440, 38 'Loughridge v. Ball (Ky.), 118 S. S. E. 150, 82 Am. St. 848. W. 321. 'A. G. Garbutt Lumber Co. v. "A. G. Garbutt Lumber Co. v. Camp, 137 Ga. 592, 73 S. E. 841. Camp, 137 Ga. 592, 73 S. E, 841. 177 ADVERSE POSSESSION. § 126 estate may not be able to do so until the death of the life tenant. The statute, therefore, does not run against every person. It runs only against those who could, if they would, stop it. It could not run against those who legally have not the power to stop it, which shows that the law will take care of those only who can not take care of themselves.^" § 124. Failure of owner to protest. — The court instructs the jury that if you believe the plaintiffs or those with whom they may be in privity, and under whom they claim, stood by and saw other parties delivering title to the land in question, cultivat- ing and improving them for years or more when there was no impediment to bring suit and recover them, and during the time made no claim to the land, their claim becomes stale, and they can not recover the land although they may have the legal title to it." § 125. Necessity that possession be hostile in its inception. — The court instructs the jury that adverse possession sufficient to defeat a legal title must be hostile in its inception and con- tinue uninterruptedly for ten years. It must also be open, no- torious, adverse, and exclusive, and must be held during all such time under a claim of ownership by the occupant; and all of these facts must be proved by a preponderance of the evidence." § 126. Character of inclosure. — The court instructs the jury that a substantial inclosure is that which substantially ac- complishes the purpose of inclosing the land. It depends, to some extent, on the character of the land, and the use to which it is to be put. There might be a difference as to what a substantial inclosure was in different parts of the country and different kinds of land. I can conceive of an inclosure which would be regarded as a substantial inclosure for timber land or grazing land, which would not be considered a substantial inclosure for a garden plat. As I say, there is probably a difference depending upon the character of the land and the part of the country where '"Sutton V. Clark, 59 S. Car. 440, "Hoffine v. Ewings, 60 Nebr. 729, 38 S. E. ISO, 82 Am. St. 848. 84 N. W. 93. See also, Taylor v. "Coram v. Palmer, 63 Fla. 116, 58 So. 721. 12 — Branson's Inst. § 127 INSTRUCTIONS FORMS. I 78 the inclosing is done ; but the inclosure must be substantial in the sense of running all the way around.^^ § 127. Adverse possession as between husband and wife. — The court instructs the jury that when there is a controversy as to whether property belongs to the husband or wife, the pos- session of the husband is not adverse to the wife, and such pos- session is not evidence of the husband's title.^* § 128. Effect of mistake as to boundary. — The court in-" structs the jury that if one by mistake incloses the land of an- other and claims it as his own, his actual possession will work a disseisor; but if, ignorant of the boundary line, he makes a mistake in laying his fence, making no claim, however, to the lands up to the fence, but only to the true line as it may be subse- quently established, and it turns out that he has inclosed the lands of the adjoining proprietor, his possession of the land is not adverse.^^ § 129. Necessity that plaintiff rely on strength of his own title. — (1) The court instructs the jury that the plaintiff in this case must rely upon the strength of his own title, and not upon the weakness of defendant's title, and, if the plaintiff has failed to show a complete right to recover on the strength of hi^ own title, then he can not recover, even though the defendant has failed to make out a complete title.^® (2) The court instructs the jury that if, upon the evidence before them, and the charge of the court, they are imable to say that plaintiff has shown a better title than defendant has shown by his evidence, that the plaintiff is not entitled to recover.^^ Hover, 11 Nebr. 97, 108 N. W. 149; '"Stiff v. Cobb, 126 Ala. 381, 28 So. Weller v. Wagner, 181 Mo. 151, 79 402, 85 Am. St. 38. See instructions S. W. 941. in Lawrence v. Alabama State Land '' Baugher v. Boley, 63 Fla. 87, SB Co., 144 Ala. 524, 41 So. 612 ; Sutton So. 980. V. Clark, 59 S. Car. 440, 38 S. E. ISO, "Anglin V. Thomas, 142 Ala. 264, 82 Am. St. 848; Benne v. Miller, 149 37 So. 784. See also, Englehart v. Mo. 228, 50 S. W. 824. Richter, 136 Ala. 562, iZ So. 939; "Anniston City Land Co. v. Ed- Kocher v. Palmetier, 112 Iowa 84, 83 mondson, 127 Ala. 445, 30 So. 61. "It N. W. 816. is a clear proposition of law," says ^ Stangair v. Roads, 46 Wash. 613, 91 Pac. 1, 11 L. R. A. (N. S.) 485. 179 ADVERSE POSSESSION. § 13 1 (3) The court instructs the jury that, if you find that the plaintiff has established her complete title, a perfect title from R. down to herself, and a better title than that of the defendant, then plaintiff is entitled to recover the land. If she has not established a better title than that of the defendant, then she is not entitled to recover.^* §130. Tacking possessions. — (1) The court instructs the jury that peaceable and adverse possession need not be continued in the same person, but, when held by different persons suc- cessively, there must be a privity of estate between them; that is, they must successively acquire the right or interest claimed.^" (2) The court instructs the jury that an inchoate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out the prescrip- tion.'" § 131. Effect of occupancy of portion of land. — The court instructs the jury that if they find from the evidence that de- fendant has from the latter part of , , up to the of , , had adverse possession of any portion of the land sued for, that then he had adverse possession of the whole of it that was not actually occupied and held adversely to him, and that plaintiff would not be entitled to recover any portion of it, unless the jury find from the evidence that plaintiff has acquired a title to some portion of it by adverse possession, and can say the Supreme Court of Alabama, "that, 38 ; Patton v. Fox, 179 Mo. 525, 78 to entitle the plaintiff to recover, it S. W. §04; Lawrence v. Alabama must show a better title than the de- State Land Co., 144 Ala. 524, 41 So. fendant's to the land in dispute, and 612 ; Benne v. Miller, 149 Mo. 228, 50 upon this proposition the burden of S. W. 824. proof rests upon the plaintiff. And ^'Mitchell v. Cleveland, 76 S. Car. unless the jury can say from the evi- 432, 57 S. E. 33. dence in the case that the plaintiff '° Dunn v. Taylor (Tex. Civ. App.), has shown a better title to the land 143 S. W. 311. in controversy than the defendant, it ""This charge of the court "em- is not entitled to a recovery." For bodies a correct principle of law on other instructions on adverse posses- this subject." A. G. Garbutt Lumber sion and ejectment, see Stiff v. Cobb, Co. v. Camp, 137 Ga. 592, Ti S. E. 126 Ala. 381, 28 So. 402, 85 Am. St. 841. I 132 INSTRUCTIONS FORMS. 180 from the evidence to what portion plaintiff has acquired title by adverse possession.^^ § 132. Adverse possession of vp^ild land. — The court in- structs the jury that if you are reasonably satisfied from the evi- dence that the plaintiff and those under whom he claims had such an adverse possession of the land as, from its wild nature, it was susceptible of, for years prior to the time that O. entered into possession, then your verdict must be for the plaintiff.^^ § 133. Evidence that may be considered on question. — ( I ) The court instructs the jury that they may look to the fact in evidence that J. H. S. has in the past made conveyances of parts of block G, for the purpose of explaining, in connection with the other evidence, the nature of her claim to the property sued for.^" (2) The court instructs the jury that it is wholly immaterial what M. paid F., or what E. paid M. for the land sued for, if the defendant has held the land sued for adversely for more than ten years before the commencement of this suit.^* (3) The court instructs that if they are satisfied from the whole evidence that this property was originally paid for with the money of J. S., or that the property for which the prop- erty in controversy was exchanged was so paid for, this may be looked to by the jury, in connection with all the other evi- dence, in determining the nature of the possession alleged to be , held by said J. H. S.' 25 " Anniston City Land Co. v. Ed- W. 149 ; Eastern Oregon Land Co. mondson, 127 Ala. 445, 30 So. 61. v. Cole, 92 Fed. 949, 35 C. C. A. 100. For approved definition of adverse "Anniston City Land Co. v. Ed- possession, see Eastern Oregon Land mondson, 127 Ala. 445, 30 So. 61. For Co. V. Cole, 92 Fed. 949, 35 C. C. A. other instructions on adverse posses- 100. For error in refusal to instruct, sion and ejectment, see Stiff v. Cobb, see Beecher v. Ferris, 112 Mich. 584, 126 Ala. 381, 28 So. 402, 85 Am. St. 70 N. W. 1106. 38; Benne v. Miller, 149 Mo. 228, SO " Owen V. Moxon, 167 Ala. 615, 52 S. W. 824 ; Lawrence v. Alabama So. 527. State Land Co., 144 Ala. 524, 41 So. " Stiff V. Cobb, 126 Ala. 381, 28 So. 612. 402, 85 Am. St. 38. See Weller v. =* Stiff v. Cobb, 126 Ala. 381, 28 So. Wagner, 181 Mo. 151, 79 S. W. 941 ; 402, 85 Am. St. 38. See Benne v. Taylor v. Hover, 77 Nebr. 97, 108 N. Miller, 149 Mo. 228, 50 S. W. 824; l8l ADVERSE POSSESSION. § 135 (4) The court instructs the jury that if at any point the testi- mony showing an adverse holding becomes so uncertain and weak that you can not say clearly what the facts are or whether the evidence shows the particular period of holding and the par- ticular character of the holding whenever the testimony gets into an uncertain state, then the adverse claimant must fail in the suit because he has not shown the clear possession contemplated under the law.^° § 134. Presumption of rightful possession. — The court in- structs the jury that the law presumes that those in possession are rightfully in possession, and he who claims that they are un- lawfully in possession has to satisfy the jury by the preponder- ance of the evidence that he has a good title, and a better title than the defendants. He is to recover by the strength of his own title.^' § 135. Burden of proof. — The court instructs the jury that under the pleadings, the law, and the evidence in this case, the only question for your consideration is the question of adverse possession of the property in controversy set up by the defendant, S. H., in his answer herein, wherein he alleges that he has been in the actual, open, notorious, and exclusive possession of the land in controversy, claiming the same adversely to the plaintiff and all the world, for more than ten years next before the com- mencement of this action ; and the burden is upon the defendant to establish such defense by a preponderance of the evidence.^* Patton V. Fox, 179 Mo. S2S, 78 S. W. 128 Ala. 589, 29 So. 596; Benne v. 804. Miller, 149 Mo. 228, 50 S. W. 824. '"Baugher v. Boley, 63 Fla. 87, 58 ""Hoffine v. Ewings, 60 Nebr. 729, So. 980. 84 N. W.-93. See Weller v. Wagner, "Sutton V. Clark, 59 S. Car. 440, 181 Mo. 151, 79 S. W. 941; Taylor v. 38 S. E. 150, 82 Am. St. 848. See Ed- Hover, 11 Nebr. 91, 108 N. W. 149. mondson v. Anniston City Land Co., CHAPTER XIV. AGENCY. Section Section 136. Holding one out as agent. 140. Notice to agent as notice to 137. Implied and apparent authority principal. of agent. 141. Liability to principal for ex- 138. Authority of agent for purchase ceeding authority. of goods. 142. Assignment of judgment by 139. Admissions of agent. agent. § 136. Holding one out as agent. — The court instructs the jury that if they beheve from the evidence that prior and up to the time of the execution of the bond sued on, the said F. & H. had voluntarily and knowringly held said M. out to the world as authorized to sign contracts similar to the one in question, and had knowingly so conducted themselves to reasonably justify the public generally and those dealing with them, in believing that said M. was authorized to sign their firm name to such con- tracts, and that the plaintiffs accepted said bond, believing that said M. had authority to sign the same, then the defendants would be bound by the acts of said M.'^ § 137. Implied and apparent authority of agent. — (1) The court instructs the jury that an agent may bind his principal within the limits of the authority with which he has apparently been clothed in respect to thg subject-matter of his agency and for the protection of innocent third persons. The authority of an agent is enlarged by implication when the principal permits the agent to do acts not expressly authorized, and if through in- attention or otherwise the principal suffers his agent to act be- yond his authority without objection, he is bound to those who 'Fore V. Hitson, 70 Tex. 520, 8 S. Mass. 118, 25 N. E. 14; Rowland v. W. 292. See also Smith v. Wise, 58 Apothecaries' Hall Co., 47 Conn. 387. 111. 141; Haskell v. Starbird, 152 Real Estate Agents, see Brokers. 182 183 AGENCY. § 138 are not aware of any want of authority to the same extent as if the requisite power had been directly conferred.^ (2) The court instructs the jury that an agent, known to be such, who has express authority to collect bills from the debtors of his principal for goods sold, through him or otherwise, can not accept in part or full payment of such bills the satisfaction of his own debts, without the express or implied assent of his principal, and the fact of his agency does not imply assent/ (3) The court instructs the jury that when an agent has au- thority to collect bills for goods sold by his principal, through him or otherwise, he can not receive anything other than money in payment, unless expressly or impliedly empowered to do so by the principal; and, when not so empowered, the receipt of checks or anything else than money in payment, unless expressly or impliedly empowered to do so by the principal, and, when not so empowered, the receipt of checks or anything else than money in payment is not binding upon the principal, unless he ratifies his acts in so accepting and receiving something else than money, when advised "thereof/ (4) The court instructs the jury that, although they may be- lieve that the defendant, B., made the admission claimed to have been made, yet the plaintiff can not recover unless the jury are reasonably satisfied that B. did in fact authorize T. to sell the steers/ § 138. Authority of agent for purchase of goods. — The court instructs the jury that an agent employed to take orders for the purchase of the goods of his principal, the goods not be- ing in his possession, and to be delivered by his principal upon his approving a sale at the prices and upon the terms proposed in the order, to the party giving it, has not authority to receive the price for the goods when so sold and delivered; and such pay- ment by the purchaser to the agent soliciting such order will not discharge the purchaser from his liability to the principal, unless 'Hanover Nat. Bank v. American " Crenshaw v. A. F. Shapleigh Hdw. Dock &c. Co., 148 N. Y. 612, 43 N. Co., 82 Ark. 182, 100 S. W. 882. E. 72, 51 Am. St. 721. 'Boswell v. Thompson, 160 Ala. ' Crenshaw v. A. F. Shapleigh Hdw. 306, 49 So. 75. Co., 82 Ark. 182, 100 S. W. 882. § 139 INSTRUCTIONS FORMS. 184 there is a known usage of trade or course of business to justify him in making it, or unless the principal is shown to have actually . received the money so paid by the purchaser to the agent.* § 139. Admissions of agent. — (1) The court instructs the jury that an admission of agents made while they are engaged in the business of their principal and made with reference to the matters in which they are engaged is evidence against their prin- cipal; but admissions should be scanned with care. The jury should look to them carefully to see what they mean and see that they are not being used to imply and to carry with them more meaning than they are justly entitled to.^ (2) The court instructs the jury that if you believCi from the proof, that the carpenter was sent there [to a tenant house] for the purpose of making the repairs [to a porch] by the defendant [the landlord] or his authorized agents in charge of the prop- erty, then the statement or assurance of said carpenter, while performing the carpenter's work, with reference to the porch be- ing safe, on the completion of the work he had been sent to do, would be admissible and such statements would be binding upon defendant; but if the proof fails to establish the fact to your satisfaction that defendant or his authorized agents did send the said carpenter upon the premises for the purpose of making the repairs upon said porch, then said carpenter was not the agent or representative of defendant, and defendant is not bound by anything done or said by said carpenter in making said repairs.' § 140. Notice to agent as notice to principal. — The court instructs the jury that notice to an agent which would be bind- ing on his principal must be received by the agent while engaged " Crenshaw v. A. F. Shapleigh Hdw. ter to the jury. This was held to be Co., 82 Ark. 182, 100 S. W. 882. proper, for, while it is true the exist- ' Stewart v. DeLoach, 86 Ga. 729, ence of the relationship of principal 12 S. E. 1067. and agent is one of law for the court ' It was a disputed question, upon where the claim of agency is not con- the trial of this case, whether the troverted, yet where it is controverted man who repaired the post was em- it becomes a mixed question of law ployed by the defendant. The trial and fact and is for the jury. Wilcox court declined to pass upon the ques- v. Hines, 100 Tenn. 524, 45 S. W. 781, tion of agency, but, by means of the 66 Am. St. 761. above instruction, submitted the mat- 185 AGENCY. § 142 in the business of the principal, or if not so received must be present in his mind at the time of his acting as agent in the transaction to which the notice relates." § 141. Liability to principal for exceeding authority. — The court instructs the jury that the burden is upon the plaintiffs to prove by a preponderance of the evidence all the material alle- gations of their petition, which are that plaintiffs were engaged as partners, as alleged in the petition, and that they employed the- defendant, and the terms of his employment, and that in viola- tion of the terms of his employment, the defendant wrongfully did the acts complained of in the several counts of the plaintiff's petition, and the amount of the damage which plaintiffs have suffered thereby.^" § 142. Assignment of judgment by agent. — The court in- structs the jury that if you believe, from the evidence, that the defendant requested J. E. Y. to procure from the plaintiff the assignment or transfer of the judgment described in the declara- tion, to the defendant, and that the said J. E. Y. did, in pursu- ance of such request, procure such assignment or transfer, then the court instructs you that the said J. E. Y. was, in that trans- action, the agent of the defendant.^^ ° Constant v. University of Roches- thing more must be shown. From the ter. 111 N. Y. 604, 19 N. E. 631, 2 L. statement of the issues, however, in R. A. 734, 7 Am. St. 769. a preceding instruction, the jury must "The Supreme Court of Kansas have understood that to 'wrongfully' says : "It is insisted that the word do the acts complained of only meant 'wrongfully' should not have been doing them contrary to directions." used ; that by this expression the jury Singmaster v. Beckett, 86 Kans. 494, were led to suppose that it was not 121 Pac. 339. sufficient to prove that the instruc- " Eames v. Rend, 105 111. 506. tions were violated, but that some- CHAPTER XV. ALIENATION OF AFFECTIONS. Section Section 143. Acts of parents of wife. 145. Exemplary damages. 144. Elements of damages recover- able. § 143. Acts of parents of wife. — (1) The court instructs the jury that if they beheve from the evidence that the defendants J. P. H. and M. E. H. [parents of the wife] or either of them, wrongfully and maliciously, and for the purpose of alienating the affections of plaintiff's wife from him, made statements to the plaintiff's wife or talked to her or so acted toward her and the plaintiff as to poison her mind against the plaintiff, and cause the plaintiff's wife to abandon him, and that the affections of the plaintiff's wife were thereby ahenated from him, and that he thereby lost the comfort of his wife's society, the jury should find for the plaintiff against both the defendants, if they believe from the evidence that both did the things mentioned in this in- struction wrongfully and maliciously and with the purpose men- tioned in this instruction, or if they believe from the evidence that only one of the defendants did the things mentioned in this instruction wrongfully and maliciously and with the purpose above indicated, should find for the plaintiff only against that defendant.^ (2) The court instructs the jury that the defendants, being the parents of the plaintiff's wife, had the right to receive their daughter into their home and to harbor her there ; also the right to counsel and advise her regarding her relations to the plaintiff, in good faith on reasonable grounds, and in the honest desire to promote her welfare and happiness, and they are not responsible for doing any of these things, unless they acted not in good faith as above defined, but wrongfully and maliciously.^ 'Hostetter v. Green, 150 Ky. 551, ' Hostetter v. Green, ISO Ky. 551, ISO S. W. 652. ISO S. W. 652. 186 187 ALIENATION OF AFFECTIONS. § 145 § 144. Elements of damages recoverable. — (1) The court instructs the jury that if they find for the plaintiff, they should fix the damages at such a sum as they may believe from the evi- dence will fairly and reasonably compensate the plaintiff for the loss of his wife's society, assistance, affection, and companion- ship, and for any mental suffering the jury may believe from the evidence the plaintiff endured thereby, not to exceed $10,000, the sum claimed by the plaintiff in his petition.^ (2) The court instructs the jury that if they find for the plain- tiff, in determining the question of damages they may consider the injury to his domestic peace and happiness and alienation of the affections and the society of his wife, if you believe from the evidence that such alienation is proved and the wrong in- flicted upon plaintiff's honor.* § 145. Exemplary damages. — The court instructs the jury that if they find for plaintiff, they will assess his damages at any sum they may deem just, not exceeding dollars [the amount laid in the ad damnum] ; and in estimating his damages they may take into consideration the injury sustained by him in the loss of the comfort, society and services of his wife and the wrong and injury done to his own feelings, character and con- dition ; and that they may allow such sum by way of smart money a^they consider the defendant, from the evidence in the case, by his conduct deserves, not exceeding in all dollars [the amount laid in the ad damnum]." 5 'Hostetter v. Green, ISO Ky. SSI, there was no controversy about the 150 S. W. 652. fact so assumed, it has been held not * Ferguson V. Smethers, 70 Ind. 519, to be error." Hartpence v. Rogers, 36 Am. Rep. 186. 143 Mo. 623, 45 S. W. 6S0. Where " In determining the propriety of an the plaintiff's wife's affections are instruction, attention should be paid alienated and she has been induced to the evidence upon which it is based, to desert him, the plaintiff is entitled Hence while "it is improper to assume to recover for the loss of her society, in an instruction the existence of comfort and services, and for the in- facts which are for the jury to find," jury done to his own feelings. Hart- yet "where such an assumption has pence v. Rogers, 143 Mo. 623, 45 S. been made and it is apparent that W. 650. CHAPTER XVI. ALTERATION OF INSTRUMENTS. Section Section 146. Insertion of official designation 148. Alteration of contract of guar- after signatures. anly. 147. Erasure of indorsement on note. § 146. Insertion of official designation after signatures. — The court instructs the jury that if they beheve from the evi- dence that the note sued on in the petition herein was changed or altered after it was executed and signed by the defendant O. T. by addjng the word or abbreviation "Pres." after the name of J. B. in the body of said note and that such change or altera- tion was made without the knowledge or consent of the defend- ant O. T., the law is for the said defendant O. T. and the jury shall find a verdict in his favor.^ § 147. Erasure of indorsement on note. — The court in- structs the jury that if you believe from the evidence that the erasure in this case was of an unauthorized indorsement on the note and you further believe from the evidence that the maker of the note had knowledge of the lack of authority, such altera- tion would not be a material alteration invalidating the note.^ § 148. Alteration of contracts — Guaranty. — (1) The court instructs the jury that, if, after you consider this evidence, you believe by a preponderance of the evidence, that the guaranty, at the time it was signed by W., H., W., and other guarantors, read "we guaranty," etc., and that the word "we" was subse- quently erased, and "I" inserted in its place without their knowl- edge or consent, then the court instructs that you shall find for these defendants, the guarantors, in this action.^ 'Tyler v. First Nat. Bank, ISO Ky. 'Waldorf v. Simpson, IS App. Div. SIS, ISO S. W. 66S. 297, 44 N. Y. S. 92. ' Landauer v. Sioux Falls Imp. Co., 1 88 189 ALTERATION OF INSTRUMENTS. § I48 (2) The court instructs the jury that if the defendants have satisfied you by a preponderance of the evidence that the check was made to be delivered by the P. Company on condition only that the plaintiffs execute a certain agreement, and not to be de- livered otherwise, and if the plaintiffs did not sign such agreement or signed the same with alterations or insertions therein, making a deviation in a material matter from the agreement as signed by the defendants, then your verdict will be for the defendants, un- less the plaintiffs have satisfied you by a preponderance of the testimony that the matters so inserted, or the alterations, were in fact a part of the original agreement between S. and the P. Company, and were omitted from the three drafts or triplicates signed by the defendants, and were afterward put in to cure the mistake or to make the agreements signed by plaintiffs conform to the actual agreement made by S. and the P. Company.* ]0 S. Dak. 205, 72 N. W. 467. Action Kau, 207 111. -116, 69 N. E. 914; Long on contract of guaranty, see N. O. & Allstatter Co. v. Barnes, 162 Ind. Nelson Mfg. Co. v. Shreve, 94 Mo. 22, 69 N. E. 454. App. 518, 68 S. W. 376; Sams Auto- "Heineman v. 'Sullivan, 57 Wash. matic Car Coupler Co. v. League, 25 346, 106 Pac. 911. Colo. 129, 54 Pac. 642; Pfaelzer v. CHAPTER XVII. ANIMALS. Section Section 149. Injuries inflicted by vicious dog 151. Collision with frightened team — — Duty to keep animal con- Contributory negligence, fined. 152. Trespass committed by cattle. 150. Injuries inflicted by vicious dog 153. Fright of horse at caged ani- — Scienter. mals. § 149. Injuries inflicted by vicious dog — Duty to keep animal confined. — The court instructs the jury that if you find from a preponderance of all the evidence that the defendant kept a dog which had a propensity to bite mankind, and which fact was known to the defendant, or should have been known by the exercise of reasonable care, then it was his duty to keep said dog confined, and, if he failed to do so, and through such failure plaintiff was damaged, then you should find for the plaintiff.^ § 150. Injuries inflicted by vicious dog — Scienter. — The court instructs the jury that before the plaintiff is entitled to re- cover, the evidence must show by a fair preponderance that the defendant kept a vicious dog at his place which he permitted to run at large and on the public highway near his place, and that he knew, or should have known by the exercise of reasonable care, that said dog was viciotis and likely to attack and injure persons while passing along the public highway.^ § 151. Collision with frightened team — Contributory neg- ligence. — The court instructs the jury that the plaintiff in this case sues to recover for injuries which he claims to have sus- tained through the negligence of the defendant in driving the de- fendant's horses and carriage against the carriage and horses of ■Holt V. Myers, 47 Ind. App. 118, 'Holt v. Myers, 47 Ind. App. 118. 93 N. E. 31. 93 N. E. 31. 190 191 ANIMALS. § 153 the plaintifif, thereby frightening plaintiff's horses and causing plaintiff's horses to i"un away and thereby producing the injuries here sued for. The court instructs the jury that if they believe from the evidence that defendant was guilty of carelessness and negligence as claimed by the plaintiff, but that the acts of defend- ant were not wanton or wilful, the plaintiff can not recover, if he himself by leaving his horses unhitched and unattended did not exercise reasonable care and prudence, and if the want of such care and prudence contributed essentially to produce the injuries here sued for. In order to determine whether plaintiff failed to exer- cise reasonable care and prudence in leaving his horses unfast- ened and unattended, they may take into consideration the char- acter, disposition and temper of the horses, the manner in which they had been trained, as well as all the other circumstances at- tending the transaction.* § 152. Trespass committed by cattle. — The court instructs the jury on special issue : Did the defendant, L. P., on or about the day of , ■ ; drive a herd of cattle upon a narrow strip of land situated between plaintiff's pasture fence and the river, and leave them there knowing and intending that they should break plaintiff's fence and enter his pasture, and thereby caused them to break and enter said pasture of plaintiff ? The burden is on the plaintiff to prove by a preponderance of the evidence the affirmative of this first special issue, and unless he has so carried the burden of proof you will answer this issue in the negative. If you answer this first issue in the negative, you will proceed no further, but report your finding on the same to the court. But, if you answer this issue in the affirmative, then you will proceed to answer the following special issues.* § 153. Fright of horse at caged animals. — (1) The court instructs the jury that if you find by a preponderance of the evi- dence that, at about the time and place stated in the plaintiff's petition, the defendant, , by its officers, after notice of the fact or after such a length of time that it should have known of 'Park V. O'Brien, 23 Conn. 339. tions along this line, see Perry v. * Moore v. Pierson, 100 Tex. 113, Cobb, 4 Ind. T. 717, 76 S. W. 289. 94 S. W. 1132. For further instruc- § 153 INSTRUCTIONS FORMS. I92 the fact, permitted a wagon or cage containing an animal to be and remain upon its streets, that such cage or wagon was a nui- sance, and of such character as to frighten horses, and that, while driving along the street passing said wagon or cage the horse attached to the carriage in which the plaintiff was riding became frightened at said wagon or cage or the animal contained therein and ran away, throwing the plaintiff out and injuring her, then the defendant would be liable, and you should find for the plain- tiff/ (2) The court instructs the jury that if you find from the evi- dence that the horse attached to the carriage in which plaintiff was riding did not become frightened at the cage or wagon or animal contained therein, but became frightened at some other object or some other cause, then she can not recover in this action." (3) The court instructs the jury that if you find from the evi- dence that the horse attached to the carriage in which the plain- tiff was riding was not frightened at the cage or wagon or animal contained therein, you need proceed no further, but return a ver- dict for the defendant.^ " Stokes V. Sac City, 155 Iowa 334, ' Stokes v. Sac City, 155 Iowa 334, 136 N. W. 207. 136 N. W. 207. " Stokes V. Sac City, 155 Iowa 334, 136 N. W. 207. CHAPTER XVIII. ASSAULT AND BATTERY CIVIL LIABILITY. Section Section 154. Assault defined — Self-defense. 157. Assault committed by concur- 155. Self-defense. rent acts of two defendants. 156. Assault committed in making 158. Assault on female. unlawful arrest. § 154. Assault defined — Self-defense. — The court instructs the jury that an assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of an- other; and if you find from a preponderance of the evidence that at the time defendant struck plaintiff, plaintiff was committing an assault upon him, the defendant was justified in using such force as appeared to him reasonably necessary, acting as a pru- dent person would under similar circumstances, to resist the as- sault of plaintiff, and to prevent any renewal of such assault, if such renewal could be reasonably apprehended.^ § 155. Self-defense. — (1) The court instructs the jury that if you find from a preponderance of the evidence that, at the time defendant struck plaintiff, plaintiff was attempting to strike defendant, or if it reasonably appeared to defendant, viewed from his standpoint alone, by words or acts of plaintiff, that plaintiff was about to make an unlawful attack upon him, in that event defendant had a right to use whatever means was nec- essary to protect himself from serious bodily injury; and this is the case although it subsequently appeared that defendant used more force than was actually necessary to protect himself from serious bodily harm.^ (2) The court instructs the jury that the defendant was the ' Downey v. Duff, 106 Ark. 4, 152 S. ' Downey v. Duff, 106 Ark. 4, 152 W. 1010. S. W. 1010. 13 — Branson's Inst. § 156 INSTRUCTIONS FORMS. I94 best judge of what was necessary to defend himself against the attack and of the means to be used for his own protection. As a technical legal proposition, this is undoubtedly correct, and it is true not only as a matter of law, but as a matter of common sense, that the party attacked is obliged in the very nature of the case to exercise his best judgment at the time as to what shall be done in his own defense, and his judgment is one which, if hon- estly exercised, is to a large extent controlling. It would be ab- solutely controlling unless the jury should find that his exercise of it, at the time and under the circumstances, was such an exer- cise as was unreasonable under all the evidence in the case.^ § 156. Assault committed in making unlawful arrest. — The court instructs the jury that if they believe, from the evi- dence and under the instructions herewith given, that the de- fendants, A. and B., were both engaged in the common purpose of unlawfully arresting the plaintiff, and that A. had laid hold of the plaintiff, and that B. immediately afterward, in pursuance of said common purpose of unlawfully arresting said plaintiff, struck said plaintiff with a club, and that said striking was done in the presence of A., and that A. did not try to prevent the same, but, on the contrary thereof, adopted and approved said act of said B. in striking said plaintiff, then the jury are in- structed that said A. is as responsible in this action for said strik- ing as is B.* § 157. Assault committed by concurrent acts of two de- fendants. — The court instructs the jury that if they believe from the evidence that the plaintiff had not committed any of- fenses alleged in the defendants' pleas, and both of the defend- ants concurred in laying hands on him and arresting him, then the jury are instructed that they should find both the defendants guilty and assess the plaintiff's damages.^ § 158. Assault on female. — The court instructs the jury that if they believe and find from the evidence that on the ' Kent V. Cole, 84 Mich. S79, 48 N. ' Mullin v. Spangenberg, 112 111. W. 168. 140. * Mullin V. Spangenberg, 112 111. 140. ip5 ASSAULT AND BATTERY. § 1 58 day of , 19 — , the defendant went to the home of the plain- tiff in the town of , and then and there requested said plain- tiff to have sexual intercourse with him, and then and there, in a rude and insolent manner, and with force took hold of plaintiff and hugged her and kissed her, and felt her breasts, and at- tempted to raise her clothing, during all of which time said de- fendant implored plaintiff to yield to his solicitations and have sexual intercourse, all of which was against the will of said plaintiff, then your verdict will be for the plaintiff." "Timmons v. Kenrick (Ind. App.), held against the objection that it did 102 N. E. 52 (this instruction was up- not tell the jury that the assault and battery must be unlawful). CHAPTER XIX. ATTACHMENT AND GARNISHMENT. Section Section 159. Grounds of attachment. 162. Wrongful attachment — Punitive 160. Attachment to recover embez- damages. zled moneys. 163. Garnishment. 161. Wrongful attachment — Actual 164. Garnishment — Right of garnishee damages. to have offset. §159. Grounds of attachment. — (1) The court instructs the jury that the absence of a debtor from his home does not subject his property to attachment upon the allegation that he absconds or secretes himself, and his neglect to inform a creditor of his intended absence does not alone authorize the latter to re- sort to the extraordinary remedy of attachment.^ (2) The court instructs the jury that even the temporary ab- sence of a debtor from the state, though he does not inform his creditors, does not authorize an inference prejudicial to his in- tegrity, nor authorize an attachment against him or his property.^ (3) The court instructs the jury that if L. W. left his usual place of business and abode with the intention of again returning, and without any fraudulent intent, then his absence was not that of absconding in the meaning of the law.^ § 160. Attachment to recover embezzled moneys. — The court instructs the jury that the defendant has embezzled and converted to his own use property and money belonging to the plaintiff. Defendant denies the charge. It devolves upon the plaintiff to sustain its accusation by the evidence and to your ' Vandiver v. Waller, 143 Ala. 411, "Vandiver v. Waller, 143 Ala. 411, 39 So. 136. 39 So. 136. "Vandiver v. Waller, 143 Ala. 411, 39 So. 136. 196 197 ATTACHMENT AND GARNISHMENT. § l6l satisfaction. Before you can find a verdict for the plaintiff, you must believe from the evidence that at the time the defendant vfas in the employ of the plaintiff he wrongfully appropriated and converted to his own use the property or money of the plain- tiff and that he did so with an intent at the time of defrauding and depriving the plaintiff thereof. It is not enough that the defend- ant may have been found to be short in his accounts, as to lum- ber or money, nor is it enough that he may not have accounted to plaintiff for all the property and money coming into his hands as plaintiff's employe. Before you can find a verdict in favor of plaintiff, it is necessary that you shall believe from the evi- dence that such shortage (if there was any), or such failure to account (if there was such failure), was occasioned by reason of the defendant's wrongfully appropriating and converting the property or money of plaintiff to his own use with the intent of depriving and defrauding the plaintiff thereof, and, if you do not so believe from the evidence, your verdict should be for the defendant.* § 161. Wrongful attachment — Actual damages. — (1) The court instructs the jury that malice can not be testified about by v., whether it existed, but the law is that the jury must look at the circumstances bearing on the inquiry, the circumstances of the issuance and levy of the attachment, and the conduct of the defendants in instituting the attachment suit. The court charges the jury that the absence of a debtor from his home does not subject his property to attachment upon the allegation that he absconds or secretes himself, and his neglect to inform a creditor of his intended absence does not alone authorize the latter to re- sort to the extraordinary remedy of attachment." The instruction was correct. "The ownership therein.'' Home Lumher mere failure of an agent to pay over Co. v. Hartman, 45 Mo. App. 647. money to his principal after he has "Vandiver v. Waller, 143 Ala. 411, received it for and on account of his 39 So. 136. Malice in suing out at- principal does not of itself constitute tachment, see San Antonio &c. R. Co. the crime of embezzlement. * * * y. Griffin, 20 Tex. Civ. App. 91, 48 S. There must be a felonious intent on W. 542; Langley v. East River Gas the part of the agent at the time of Co., 41 App. Div. 470, 58 N. Y. S. the conversion to appropriate it to his 992. own use and deprive the owner of the § 1 62 INSTRUCTIONS FORMS. I98 (2) The court instructs the jury that if they find from the evidence that L. W. was not about fraudulently to dispose of his property, then Co. would be liable to the plaintiff if there was no other cause for the attachment suit." (3) The court instructs the jury that the elements of actual damages as claimed in this case are damages to the goods, attor- ney's fees in the attachment suit and in contest of exemptions, and in loss of credit and business, and they must look to the evi- dence for the amount of these damages.' (4) The court instructs the jury that it is the general rule that where a person seeks the advice of an attorney before commenc- ing a suit at law, and states fully and fairly and completely all the facts relative to his case, and after making this statement the attorney advises him that he had a good cause of action, and a good right to sue out a writ of attachment in aid of his suit, and that he proceeded in accordance with this advice, and brought the suit, and caused the writ of attachment to issue and be served, the advice of counsel, if established by the evidence, will be a good defense. But to make it a good defense, everything that relates to the facts in the case must be stated fully and truly to the attorney, and nothing that has any material bearing on the case must be withheld from him.* ( 5 ) The court instructs the jury that it is not enough for de- fendant to prove generally that all the facts were laid before the attorney, but it must be shown what facts were submitted.' (6) The court charges the jury that if they believe from the evidence that L. W. was not about to fraudulently dispose of his property, and that no ground existed for the issuance of the at- tachment, then V. & Co. would be liable for all actual damages that the evidence shows you the plaintiff has suffered. °* § 162. Wrongful attachment — Punitive damages. — The court instructs the jury that if they believe from the evidence = Vandiver v. Waller, 143 Ala. 411, Williams v. Casebeer, 126 Cal. 11, 58 39 So. 136. Pac. 380; Baker v. Hornik, 57 S. Car. ' Vandiver v. Waller, 143 Ala. 411, 213, 35 S. E. 524. 39 So. 136. " Merchant v. Pielke, 10 N. Dak. 48, ' Connelly v. White, 122 Iowa 391, 84 N. W. 574. 98 N. W.* 144. Malicious prosecution "a Vandiver v. Waller, 1-13 Ala. — acting on advice of attorney, see 411, 39 So. 136. 199 ATTACHMENT AND GARNISHMENT. § 1 64 that the suing out of the attachment was wrongful, as has been defined by the court, and that the attachment was issued without probable cause, punitive as well as actual damages can be recov- ered, though the attachment is sued out by an agent, if the prin- cipal, with full knowledge, ratified the act of the agent." §163. Garnishment. — (1) The court instructs the jury that whether the Co. received or obtained property under the circumstances which I have stated or not, if you find that, at the time of the service of the writ of garnishment in this case upon it, it was in possession of goods, credits, chattels, moneys, or effects belonging to the defendant O., upon which it had no superior lien or claim, or at that time was indebted to O., then the plaintiff is entitled to recover the amount and value thereof. ^^ (2) The court instructs the jury that it is claimed on the part of the plaintiff in this suit that this bill of sale was not a bona fide bill of sale; that is, that it was fraudulent, and therefore void. I charge you that, in order to make this bill of sale fraudu- lent or void in this case, it is necessary that it should be executed with an intent to hinder, delay, or defraud creditors. If it was executed for the purpose of securing bona fide indebtedness, it would not be fraudulent, no matter if it did in effect hinder or delay or defraud creditors; but if executed, not to secure a bona fide indebtedness, but for the purpose of hindering, delaying, and defrauding creditors, it would be void in law, and no title would pass under it by virtue of the bill of sale, if you should find it to be fraudulent, — that is, if it was not executed for the purpose of paying a bona fide indebtedness owed by O. to the Co." § 164. Garnishment — Right of garnishee to have offset. — The court instructs the jury that the garnishee has a right to ""Vandiver v. Waller, 143 Ala. 411, " Sloman v. Goebel Brewing Co., 39 So. 136. Malicious prosecution— 118 Mich. 442, 76 N. W. 975. See probable cause, see Florence Oil &c. Smith v. Merchants &c. Nat. Bank R. Co. V. Huff, 14 Colo. App. 281, 59 (Tex.), 40 S. W. 1038. Pac. 624; Lansky v. Prettyman, 140 " Sloman v. Goebel Brewing Co., Mich. 40, 103 N. W. 538. Damages, 118 Mich. 442, 76 N. W. 975. See see Eggett v. Allen, 119 Wis. 625, 96 Smith v. Merchants &c. Nat. Bank N. W. 803; Connelly v. White, 122 (Tex.), 40 S. W. 1038. Iowa 391, 98 N. W. 144. § 164 INSTRUCTIONS FORMS. 200 have any sum or sums of money paid by him, or any property de- Hvered by him to defendants, or either of them, on the purchase- price of said premises, prior to the time the notice of garnish- ment was served upon him, offset against the purchase-price of said land, and he has a right to have offset against said purchase- price any indebtedness, whether notes or accounts owing by de- fendants, or either of them, to him, at the time said notice of garnishment was served upon him ; but he can not offset against such purchase-price any claim that had been previously settled or liquidated, nor can he offset against such purchase-price any sum or sums of money paid or any property furnished by him to defendants, or either of them, since the said notice of garnish- ment was served upon him.^^ " State Bank of Stratford v. Young (Iowa), 140 N. W. 376. CHAPTER XX. ATTORNEYS. Section Section 165. Contracts with attorneys. 168. Compensation. 166. Duty of good faith toward cH- 169. Compensation — R ecovery of ent. moneys advanced. 167. Compromises and releases. 170. Privileged communications. § 165. Contracts with attorneys. — (1) The court instructs the jury that if you find from a preponderance of the evidence that defendant did enter into a contract with plaintiff to pay him the sums of money expended by him in finding her, and a $ioo fee for his services in that connection, and the further sum of 20 per cent, of any share of her mother's estate which he might recover for her, and if you further find that said contract was made in good faith, and not procured by fraud, misrepresenta- tion, or concealment of material facts on the part of the plaintiff, and that afterward the defendant revoked the power of attorney executed by her to plaintiff, then it is for you to say whether such revocation was intended by her and understood by him as dismissing him from the case, and denying him tlfe right to pro- ceed and carry out his part of the contract; if you should find that it was so intended and so understood by both parties, then you should find for plaintiff such sum in damages as you believe he is entitled to recover under the other instructions given herein.^ (2) The court instructs the jury that if you find that the agreement about which plaintiff testified was voluntarily entered into by the defendant then the burden of showing that her con- sent to the same was procured by misrepresentation or conceal- ' Weil V. Fineran, 78 Ark. 87, 93 S. instruct, see Currey v. Butcher, 37 W. 568. For erroneous refusal to Ore. 380, 61 Pac. 531. 201 § 165 INSTRUCTIONS FORMS. 202 ment of material facts amounting to a fraud is upon the defend- ant.- (3) The court instructs the jury, if they beHeve from the evi- dence that the plaintiff is entitled to recover, the measure of damages is the amount of money he would have received had he been allowed to complete the performance of his contract, less the value of such services as he would have been required to render, and also deducting any expense which he would have been compelled to incur in carrying out the contract on his part/ (4) The court instructs the jury that if they believe from the evidence that the defendant contracted with the plaintiff, W., as an attorney at law, to pay him 20 per cent, of her interest in the estate of M. J. G., in case he should establish her right thereto, and recover same for her, and, by power of attorney, constituted and appointed plaintiff her agent and attorney to procure such interest, and also agreed to pay him $100 for his services in making search for defendant and proving her identity and estab- lishing her to be an heir of deceased, and also promised to reim- burse plaintiff for all sums expended by him in finding her and all sums expended in her interest, and "if the jury further believe from the evidence that the plaintiff did make such search, locate and develop defendant to be the daughter and heir of the de- ceased, and entitled to share in her estate, and if then the plaintiff while he was taking all necessary steps in her behalf toward a recovery of her interest in said estate was prevented by defendant from doing so by revoking his employment as such attorney, then plaintiff is entitled to a verdict in his favor for all sums expended by him and which she agreed to repay, and also the sum of $ • for his services in making search for defendant and showing her to be an heir of deceased, and is also entitled to recover damages for a breach of his contract of employment in any sum which the jury may feel warranted from the evi- dence in awarding to him, not exceeding $ . And in arriv- ing at such verdict the jury may take into consideration the value 'Weil V. Fineran, 78 Ark. 87, 93 S. 407; Roche v. Baldwin, 135 Cal. 522, W. 568. See Blizzard v. Applegate, 67 Pac. 903. n Ind. 516; Hauss v. Niblack, 80 Ind. 'Weil v. Fineran, 78 Ark. 87, 9Z S. W. 568. 203 ATTORNEYS. § 1 69 of the estate of deceased, as it may have been proven in evi- dence."* § 166. Duty of good faith toward client.— The court in- structs the jury that attorneys, in deahng with their cHents, are required to exercise the highest order of good faith and to dis- close to them all information in their possession as to the mate- rial facts of the case which would or might influence the client in entering into or refusing to execute the contract in the issue.'' § 167. Compromises and releases. — The court instructs the jury that the ordinary employment of an attorney at law does not authorize him to compromise or release a claim, settle a suit or alter the terms of his client's contract." § 168. Compensation. — The court instructs the jury that they will find for the plaintiff such sum as they may believe from all the evidence his services as legal adviser and attorney ren- dered defendant under his employment by defendant were rea- sonably worth, not exceeding dollars, the amount claimed in the petition.^ § 169. Compensation — Recovery of moneys advanced. — The court instructs the jury that if they find from the evidence that the plaintiff has performed services for the defendant, with her consent, since the month of , in the year , and has advanced and paid moneys for her while acting as her solicitor, in matters connected with her employment, they will find for the plaintiff a reasonable value for such service, as shown by the evidence, and also the amount of moneys which the evidence shows he has advanced for her.* 'Weil ^. Fineran, 78 Ark. 87, 93 S. ' Petry v. Nelson, 144 Ky. 1, 137 S. W. 568. W. 783. ' Weil V. Fineran, 78 Ark. 87, 93 S. ' The trial court erred in refusing W. 568. See Werner v. Knowlton, to give this instruction, as it "accu- 107 App. Div. 158, 94 N. Y. S. 1054; rately stated a rule of law clearly ap- Union Mut. Ins. Co. v. Buchanan, 100 plicable to the issues and evidence in Ind. 63. the case" and the rule was not "an- Mandeville v. Reynolds, 68 N. Y. nounced in any other instruction ■528. given.'' Bennett v. Connelly, 103 111. SO. § 170 INSTRUCTIONS FORMS. 204 § 170. Privileged communications. — The court instructs the jury that it is the duty of an attorney toward his cHent that he shall not use any information which he has derived from his client to the prejudice or injury of his client and that he shall not act in opposition to his chent's interests.* • Hatch V. Fogerty, 33 N. Y. Super. Ct. (1 J. & S.) 166. CHAPTER XXI. AUTOMOBILES. Section Section 171. Right to use of highway. 173. Care in operation of machine — 172. Care in operation of machine — Care as to blind persons. Speed. 174. Frightening horses. 175. Ownership of machine. § 171, Right to use of highway. — (1) The court instructs the jury that an owner of an automobile has the right to use the highway of this state provided in using it he uses reasonable care and caution for the safety of others and does not violate the law of the state.^ (2) The court instructs the jury that automobiles are lawful vehicles, and as such are entitled to the privilege of using the public highways, and the frightening of teams driven along the public highway caused by the approach of automobiles does not of itself raise any inference of negligence on the part of the driver of such automobile, and the law contemplates that all sorts of conveyances may use the highways with equal rights ; but im- poses upon the drivers of every character of conveyance the ex- ercise of ordinary care for themselves and every other person entitled to the use of such highways.^ §172. Care in operation of machine — Speed. — (1) The court instructs the jury that if you find that the accident com- 'The requested instruction in this the manner indicated in the foregoing case was in the- following language : form. The modification was held to "The court instructs the jury that an be proper. Christy v. Elliott, 216 111. owner of an automobile has the right 31, 74 N. E. 103S, 1 L. R. A. (N. S.) to use the highway of this state pro- 21S, 108 Am. St. 196. vided in using it he does not violate "Riley v. Fisher (Tex. Civ. App.), the law of the state." The court mod- 146 S. W. S81. ified it by changing the last clause in § 1/2 INSTRUCTIONS FORMS. 206 plained of was occasioned by the defendant in the operation of an automobile, the next inquiry to be determined is, Was the defendant guilty of any negligence in the operation of said au- tomobile which occasioned said accident? The mere fact, if established, that the plaintiff's team was frightened, and she was thereby injured by the defendant's automobile, is not sufficient. The plaintiff is required to go further and show that in the opera- tion of said automobile the defendant was guilty of some negli- gence which occasioned the said injury.^ (2) The court instructs the jury that the law requires that the driver of an automobile upon the public streets and highways must use reasonable care and caution for the safety of others, and what is reasonable care in this case is to be determined by the circumstances as shown by the evidence.* (3) The court instructs the jury that even though you may believe from the evidence that at and just prior to the collision complained of the plaintiff was running his automobile at an excessive rate of speed and in excess of the speed as provided by the ordinances of the city of E. for said place, and that plain- tiff was negligent in so doing, if he did so, but if you further believe from the evidence that the speed at which plaintiff was running his automobile did not proximately cause or contribute to cause the collision and consequent injuries, if any, to plaintiff and his automobile, then in such event, if you so find, you are instructed that you can not find against the plaintiff on the ground of his running the automobile at an excessive rate of speed in excess of the speed limit at such place, if he did so.^ (4) The court instructs the jury that in this case plaintiff seeks to recover damages against defendant for personal injuries which plaintiff says he received in consequence of defendant's negligence, which negligence, according to the contention of plaintiff, consisted in defendant's operating an automobile in a southward direction on the west side of G. avenue, at or near M. avenue, on or about the day of , , at a high ' Cresswell v. Wainwright, 154 Iowa ' Texas &c. R. Co. v . Hilgartner 167, 134 N. W. S94. (Tex, Civ. App.), 149 S. W. 1091. ■* ^McLaughlin v. Griffin, 1S5 Iowa 302, 135 N. W. 1107. 207 AUTOMOBILES. §172 and dangerous rate of speed and without sounding the horn on said automobile, or in any manner giving plaintiff warning of its approach. It is incumbent on plaintiff to reasonably satisfy the jury by the evidence of the existence of these facts before they can return a verdict against the defendant, and if the jury should find and believe from the evidence that defendant was not opei'at- ing or running the automobile at a high or at a dangerous rate of speed, and that he did sound the horn thereof or otherwise gave plaintiff warning of its approach, then it will be the duty of the jury to return a verdict in favor of the defendant.*^ (5) The court instructs the jury that the undisputed evidence offered in this case shows that A. avenue, where the accident occurred, is a public street. You are instructed that it would be negligence on the part of W. to operate an automobile on that street, where he was operating it immediately before and at the time the accident occurred, at a greater rate of speed than eighteen miles an hour.' (6) The court instructs the jury that it is the law of this state that no person shall operate an automobile on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, and not at a greater average rate than twenty miles per hour. You are instructed that the statute expressly authorized the use of automobiles on the highway and confers on the operators of such vehicles the same rights in the road as are accorded to the drivers of other vehicles, and you are instructed that if the defendant operated his automobile with such care as an ordinarily cautious and prudent man would use under like circumstances, having a regard for the use of the road at the time by others (he being bound to know that people were likely to be traveling upon the same), and using reasonable and ordinary care under all of the circumstances, there can be no recovery, and you are instructed that, while a party operating an automobile at an average speed of more than twenty miles per hour is prima facie guilty of negligence, yet this may be over- come by evidence or the facts and circumstances surrounding the °Bongner v. Zeigenhein, 165 Mo. 'Lefkovitz v. Sherwood (Tex. Civ. App. 328, 147 S. W. 182. App.), 136 S. W. 850. § 173 INSTRUCTIONS FORMS. 208 case as stated above. All that is required is that he should use such care as an ordinarily cautious and prudent person would use under like circumstances, having a regard for the use of the road at the time by others, and, if he did so, he would not be guilty of negligence.^ (7) The court instructs the jury that in determining whether the defendant R. W. was guilty of negligence at the time the automobile he was then using collided with the automobile of the defendant E. D. M., you may take into consideration the rate of speed he was then driving such automobile, the manner in which he was operating the same, whether he had proper and reason- able lights thereon to enable him to see objects that might and did come in the path and course he was traveling in time to avoid colliding with and hitting them, and whether he could see objects or obstructions ahead of him on account of any light that might be shining or thrown in his face, and whether he was driving such automobile at a faster rate of speed than he could bring said automobile to a standstill within the distance that he could plainly see objects and obstructions ahead of him, together with all .other facts and circumstances shown by the evidence and testimony of this case.*^ § 173. Care in operation of machine — Care as to blind persons. — The court instructs the jury that if you find that the plaintiff was blind, and that this fact could have been dis- covered by the defendant by the use of ordinary care before the plaintiff was struck by the automobile, then it was the duty of the defendant to stop his machine upon discovering such fact, in order to prevent the accident, and, if he failed to do so, he would be guilty of such negligence as would make him liable in this action.' § 174. Frightening horses. — The court instructs the jury that if you find and believe from the evidence in this case by a preponderance thereof that on or about the day of , 'Scott V. O'Leary (Iowa), 138 N. 'McLaughlin v. Griffin, ISS Iowa W. S12. 302, 135 N. W. 1107. "ajaquith v. Worden, 73 Wash. 349, 132 Pac. 33. 209 AUTOMOBILES. § 175 , plaintiff's deceased father while coming to the town of C. driving the team described in plaintiff's petition, and while upon a public highway near the town of C. his said team was ap- proached by an automobile driven by defendant's son, C. F., and you further find that said automobile had been placed in the pos- session of his son, C. F., by the defendant W. D. F., and that the said C. F. was acting under the direction of, and upon an errand for his said father, W. D. F., and you further find that at said time the said C. F. was inexperienced in the operation and man- agement of said automobile, and you find from the evidence in this case that said C. F. saw and observed the approach of the team driven by deceased, C. C. S., and the frightened condition of said team, if the same were frightened, and that said C. F. continued to approach said team from the front and toward the head of said team, causing them to become more frightened and to turn rapidly in an opposite direction, thereby causing plain- tiff's father, the deceased, to be thrown to the ground and in- jured, as alleged in plaintiff's petition, and that such injuries were the proximate cause of the death of plaintiff's father ; and you further find that such acts upon the part of said C. F. in ap- proaching said team, or in his failure to stop said machine, if there was such failure, or the placing of said machine in his pos- session .by the defendant, W. D. F., were all or any of them acts of negligence as the same has hereinbefore been defined to you, and that such negligence, if any, was the proximate cause of the injury complained of, and that deceased was acting with ordinary care for his own safety, then, in the event you so find, you will find for plaintiff damages, the measure of which will be herein- after charged you/" § 175, Ownership of machine. — The court instructs the jury that if you find and believe from the evidence in this case that at the time of the alleged accident that the defendant had loaned his automobile to the F. Association or to W. W. O. for the benefit of the F. Association, and that said automobile was '"Riley V. Fisher (Tex. Civ. App.), 146 S. W. 581. 14 — Branson's Inst. 8 175 INSTRUCTIONS FORMS. 2IO actually in the business of the association, and not upon the busi- ness of the defendant at said time, then the plaintiff would not be entitled to recover, and your verdict should be for the de- fendant." "Riley V. Fisher (Tex. Civ. App.), 146 S. W. 581. CHAPTER XXII. BAILMENTS. Section Section 176. Diligence in care of gratuitous 177. Negligent use of hired animals, bailment. 178. Hired machinery — Implied war- ranty. § 176. Diligence in care of gratuitous bailment. — (1) The court instructs the jury that a borrower of a chattel without pay- ing hire for its use is bound to extraordinary diligence and is re- sponsible for the slightest neglect. He is bound to exercise all the care and diligence that the most careful persons apply to their own affairs and the omission of the most exact and scrupulous caution is regarded by the law as a culpable neglect.^ (2) The court instructs the jury that if defendant used the mare at different work from that agreed upon, if any was agreed upon, and she received an injury while being so used, from which she died, defendant is liable, whether borrowed or hired. ^ § 177. Negligent use of hired animals. — (1) The court in- structs the jury that it is the duty of the defendant's employe in driving the plaintiff's team to exercise such care and watchful- ness for them and their condition as a man of ordinary prudence would exercise while driving them, and if such employe failed to exercise such watchful care over the horses, and in fact did not notice their condition, and that they were becoming exhausted, when he might have observed that fact by the exercise of such care, and continued to drive them until they were exhausted, such lack of oversight and watchfulness was negligent, and defendants are responsible for it, and the injury shown by the evidence to have resulted therefrom.^ ' Scranton v. Baxter, 6 N. Y. Super. ' Testimony was introduced in this Ct. (4 Sandf.) S. case tending to show that the driver - Cartlidge v. Slone, 124 Ala. 596, 26 took no notice of the team. It was So. 918. held that the foregoing instruction, re- 211 § 177 INSTRUCTIONS FORMS. 212 (2) The court instructs the jury that if the plaintiff and the defendant made a contract by which the defendant hired the plaintiffs' horse and carriage for use in driving for pleasure for a time and distance not fixed or agreed upon by them, the defend- ant rightfully drove the horse to L. and thence to P. and was responsible for any injury to such horse or carriage which was caused by the defendant's want of ordinary care and skill in driv- ing or managing such horse and carriage in P., to be determined in view of the fact known by the plaintiffs and presumed to have been considered by them in letting the horse, that the defendant was a one-armed man; but was not responsible for any injury to such horse and carriage caused by the insufficiency of the plain- tiff's harness for driving or tying the horse or by reason of any disease or physical infirmity or want of docility of the horse, or by any peculiar habits or dispositions of the horse when tied, unless the defendant was notified of such peculiar habits and dispositions.* (3) The court instructs the jury that a livery stable keeper is freed from liability for an accident by showing that he exercised the usual skill, care, and diligence ordinarily exercised by livery stable keepers. If the jury find that the horse was easily fright- ened by proximity to automobiles, and the plaintiffs had knowl- edge of this fact, and that the plaintiffs drove on a road not con- templated in the hiring, and which was more traveled by automo- biles than was contemplated, and if the jury further find that the l^laintiffs, by driving on such road, not contemplated in the con- tract of hiring came in proximity to an automobile, and that such proximity so brought about contributed to the accident, then the verdict should be for the defendants.^ (4) The court instructs the jury that if they believe from the evidence that C. got the mare to do a particular kind of work, and put her to a different kind of work, and she was injured quested by plaintiff and refused by v. Long, 120 Iowa 59, 94 N. W. 467. the trial court, should have been giv- *Perham v. Coney, 117 Mass. 102. en, as "the jury might have found For other approved instructions on from the evidence that the employe this subject, see Brannan v. Moore, [driver] failed to exercise proper care 135 Ga. 517, 69 S. E. 820. in observing the team and how they "Deming v. Johnson, 80 Conn. 553, were enduring the drive." Wisecarver 69 Atl. 347. 213 BAILMENTS. § 1 78 while doing such w6rk, this was a conversion, and would make the defendant liable." (5) The court instructs the jury that if the defendant bor- rowed or hired the mare to do light work, and put her to heavy work, and while she was doing such heavy work she received an injury from which she died, then the defendant is liable, although the injury to the mare occurred without any fault on the part of defendant.' §178. Hired machinery — Implied warranty. — (1) The court instructs the jury that if the defendant informed the plain- tiff of the purpose for which it was to use these locomotives, and trusted the plaintiff to furnish him with locomotives suitable and adequate for such purpose, and the plaintiff undertook to do this, and thereupon furnished these locomotives for that purpose, there was an implied warranty by the plaintiff that the locomotives were reasonably suitable and adequate to the extent of the ca- pacity of that class of engines for the purpose for which they were leased.* (2) The court instructs the jury that if you find that the con- tract was as claimed by defendant, viz., that the car was to be kept in the country garage, and at the owner's risk, the plaintiff is still entitled to recover if defendant was guilty of negligence. By negligence is meant the failure of the defendant to exercise that care in protecting plaintiff's property that an ordinarily care- ° Cartlidge v. Slone, 124 Ala. 596, be fairly assumed that the jury under- 26 So. 918. stood from this portion of the charge ' ^artlidge v. Slone, 124 Ala. 596, that if they should find that the plain- 26 So. 918. tiff had been informed of the purpose The expression in this part of the for which its locomotives were to be charge, "and the plaintiff undertook used, and that the defendant trusted to do this," made the instruction upon the plaintiff to furnish locomotives this subject rather indefinite and ob- suitable for that purpose, there would scure. That, however, is not of seri- be an implied warranty that the loco- ous consequence, if the whole state- motives so furnished were suitable ment in relation to this matter, as ap- for the desired purpose. The law plied to the situation hefore the jury, sanctions such a proposition as appli- expressed a pertinent principle in cable to a situation like that before such a way as to furnish them a the jury. Harper Machinery Co. v. proper guide for their deliberations, Ryan-Unmack Co., 85 Conn. 359, 82 and did not mislead them. It may Atl. 1027. § 178 INSTRUCTIONS FORMS. 214 ful and prudent man would have exercised under the circum- stances. In deciding whether defendant exercised ordinary pru- dence, you must take into account the snowfall, the construction of the roof, and the fact that the attention of M., who was acting for defendant, was called to the amount of snow on the roof. In case you find there was a latent defect in the construction, a de- fect which a man of ordinary observation would not have dis- covered in an examination of the building, still the plaintiff is entitled to recover if you find that the defendant was negligent in permitting the snow to remain on the roof, and that such neg- ligence proximately caused the damage.* "Pilson V. Tip-Top Auto Co. (Ore), 136 Pac. 642. CHAPTER XXIII. BANKRUPTCY. Section Section 179. Meaning of "insolvency." 181. Preferences. 180. Burden of proof of insolvency. § 179. Meaning of "insolvency." — (1) The court instructs the jury that in the course of these instructions, the term "in- solvency" has been several times used. Now, a person is said to be insolvent within the meaning of the law, in such cases as the one now before you, when the fair, reasonable, market value of his property which is not exempt from execution is less than the amount of his indebtedness.^ (2) The court instructs the jury that if you should find and believe that at the time of the maturity of the note sued on the defendant P. owed debts which he could not pay at the time, but that he had at the time properties and assets which exceeded the amount of his debts and which could have been reached by proc- ess of law, he would not be considered insolvent within the mean- ing of the law applying to this case.^ § 180. Burden of proof of insolvency. — The court instructs the jury that under the issues thus joined, the burden of proof is on the plaintiff to prove by a preponderance of the evidence each of the following propositions : "First. That at the time of the making of the mortgage to the defendant, and the payment of the $ to the defendant, said C. W. F. B. was insolvent. Second. That after the making of the said mortgage and the payment of the said $ , and within months thereafter, a petition in bankruptcy was filed against the said C. W. F. B. Third. That ' Wickwire v. Webster City Savings " Texas Baptist University v. Pat- Bank, 153 Iowa 225, 133 N. W. 100. ton (Tex. Civ. App.), 145 S. W. 1063. 215 § l8l INSTRUCTIONS FORMS. 2l6 since the filing of the said petition the said B. has been adjudged a bankrupt, and that there are outstanding creditors of his whose claims have been allowed, but are still unpaid. Fourth. That, at the time the making of the said mortgage and ths payment of the said $ , the said B. intended to give to the defendant a preference over his other creditors, and that the said defendant at said time knew, or had reasonable cause to believe, that said B. was in fact insolvent, and intended a preference.^ § 181. Preferences. — The court instructs the jury that in the bankruptcy act, it is provided that if a bankrupt shall have given a preference within months before the filing of the petition, or after the filing of the petition, and before the adju- dication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have reasonable cause to be- lieve that it was intended thereby to give preference, it shall be voidable by the trustee, and he may recover the property or its value from such person. By reference to the above and foregoing language in this instruction contained, you will see that one of the important things for you to decide in this case is this: Whether the defendant bank knew or had reasonable cause to believe that the said B. was insolvent, and that it was intended by him in giving the said mortgage to it (the said bank), and in causing the payment to it of the $ , to give to the said bank a preference over his other creditors. It is not sufficient for the plaintiff to prove that the defendant bank had reasonable cause to suspect that B. was insolvent and was preferring it over his other creditors; it (the said bank) must either have known, or have had reasonable cause to believe, that B. was insolvent, and that it was receiving from him a preference over his other cred- itors. In still other words, it would not be enough for the bank to have had some reason to suspect the insolvency of the said B., but it must have had such a knowledge of the facts as to induce in it a reasonable belief of B.'s insolvency, in order to invalidate the mortgage taken by it to secure his debt to it (the said bank).* 'Wickwire v. Webster City Savings ''Wickwire v. Webster City Savings Bank, 153 Iowa 22S, 133 N. W. 100. Bank, 153 Iowa 225, 133 N. W. 100. CHAPTER XXIV. BANKS AND BANKING. Section Section 182. Liability of persons operating 187. Payment to husband on wife's bank. . certificate of deposit. 183. Officer's knowledge of transac- 188. Guaranty of bank deposit. tions. 189. Determination of question of in- 184. Retention of funds to pay certi- solvency. fied check. " 190. Receiving deposits with knowl- 185. Payment of draft. edge of insolvency — Criminal 186. Deposit of wife's money in hus- prosecution. band's name. § 182, Liability of persons operating bank. — The court in- structs the jury that if you believe from the evidence in this case that the defendants took charge of and carried on and operated said bank, either by themselves, or through their officers or agents, and they, or their officers or agents, in the conduct of the business of said bank and in the usual course of banking business, drew the drafts or bills of exchange to and against plaintiff bank, offered in evidence before you, as alleged in its second amended petition, and that plaintiff paid the sums as therein alleged, and if you further believe from the evidence that said bank, during said time, received said items sent for collection, and collected the same and never remitted to or accounted to plaintiff for same, as alleged in said petition, then all said defendants, including de- fendant S. would be liable therefor.^ § 183. Officer's knowledge of transactions. — The court in- structs the jury that a presumption arises, in the absence of evi- '"The objection urged to paragraph should not have been submitted as a 2 of the court's charge to the effect ground of liability, their having done that there is no evidence of appellants so is answered by the fact that the having held themselves out as part- charge does not authorize a recovery ners, and that, therefore, the charge- upon any such theory. * * * The 217 § 183 INSTRUCTIONS FORMS. 2l8 dence to the contrary, that a managing director of a bank has knowledge of its doings and transactions, whenever by ordinary diligence he could have acquired the same, and whether or not such presumption is satisfactorily overcome in any case is for you.^ § 184. Retention of funds to pay certified check. — The court instructs the jury that if they find from the evidence that the check sued on was certified by the authority of the defendant company, and that at the time of said certification there were sufficient funds of the maker of said check on deposit with de- fendant to pay said check, then defendant had the right to retain out of the funds of said maker a sufficient amount to pay said check whenever same might be presented.^ § 185. Payment of drafts. — ^The court instructs the jury that if they believe from the evidence that the money represented in the two drafts paid by B. and F. was first furnished by the defendant bank to S. to buy cattle and then drawn for by said bank on B. and F. and paid by them to said bank, and you fur- ther believe from the evidence that it was the intention of S. that the cattle so purchased should be shipped to the said B. and F. to meet said drafts, and that said bank so understood at the time it drew said drafts, and you further find that said cattle were afterward diverted to the City of C. with the knowledge of said bank, and said bank again received the money so advanced by it out of the proceeds of the sale in the City of C, said bank would be liable for the money so obtained from B. and ¥., and your verdict, if you find as above stated, should be for the plain- tiffs for the amount of said drafts, with interest at per cent. per annum from the day of .* charge plainly makes the liability of W. 467; Long &c. Allstatter Co.. v. appellants to depend upon their hav- Barnes, 162 Ind. 22, 69 N. E. 454; ing actually operated the Bank of Pfaelzer v. Kau, 207 111. 116, 69 N. E. Channing." Curtis v. First Nat. Bank 914; Peck v. Peck, 124 Wis. 550, 103 of Ft. Worth (Tex. Civ. App.), 138 N. W. 5. S. W. 795. ' Muth V. St. Louis Trust Co., 94 ■^ Rattlemiller v. Stone, 28 Wash. Mo. App. 94, 67 S. W. 978. 104, 68 Pac. 168. Contract of guar- "Nebraska Nat. Bank v. Burke, 44 anty generally, see Landauer v. Sioux Nebr. 234, 62 N. W. 452. Falls Imp. Co., 10 S. Dak. 205, 72 N. 219 BANKS AND BANKING. § 1 88 § 186. Deposit of wife's money in husband's name. — The court instructs the jury that if she [a married woman] dealt with the fund that is, the $ after it was deposited here in her husband's name, knowing it was in her husband's name, or if with a knowledge that the fund was deposited in the name of her husband she allowed it to remain there in his name for any length of time, and took no steps to have the same placed to her individual credit, these are matters which the jury may consider in determining whether she ratified the deposit in her husband's name or not ; and after considering these, and all evidence bear- ing on this question, if the jury are satisfied by the greater weight of the evidence that she recognized and adopted the de- posit in her husband's name, they will answer the third issue [release of defendant bank's liability to plaintiff] "Yes," and if not so satisfied, they will answer it "No."° § 187. Payment to husband on wife's certificate of deposit. — The court instructs the jury that if you believe, from the evi- dence in this case, that the plaintiff [a married woman] author- ized the defendant to pay the money represented by the certificate of deposit over to her husband, and the defendant did in good faith pay it over to him, that would, in law, be a good defense to a suit predicated upon this certificate of deposit in favor of the plaintiff, and she could not recover, provided she had author- ized the defendant to let her husband have the money ; and this would be true whether she let him have it as a loan, or whether as a gift." § 188. Guaranty of bank deposit. — The court instructs the jury that if you find from the evidence that B. F. S. was the managing director of the bank at the time of the extension, you have a right to consider that, along with all the other circum- stances, in arriving at a conclusion as to whether or not he ap- proved or consented to the extension.' 'Yarborough. v. Banking &c. Co., ' Rattlemiller v. Stone, 28 Wash. 142 N. Car. Ill, 55 S. E. 296. . 104, 68 Pac. 168. Action on contract ° The refusal to give this charge of guaranty, see Pf aelzer v. Kau, 207 held error. Maynard v. Maynard, 12 111. 116, 69 N. E. 914; Long &c. All- Ga. App. 279, 11 S. E. 109. statter Co. v. Barnes, 162 Ind. 22, 69 § 189 INSTRUCTIONS FORMS. 220 § 189. Determination of question of insolvency. — (1) The court instructs the jury that in determining the question of whether or not the Bank was in faihng circumstances on the day of , , you should consider the liabilities of the bank and the reasonable market value of the assets of the bank on that day, regardless of any change, if any, or additional security, if any, which may have been given, if any, since that day. If you shall find from the evidence that any part of the assets of said bank have been proven to have a market value, then you should give such assets such intrinsic value as may have been shown by the evidence in the case, and if there be any of said assets, to wit, stocks, bonds, or negotiable paper, that have not, in your opinion, from the evidence, been shown to have a market value nor an intrinsic value, then such assets are pre- sumed to be worth their face value. This will have no appHca- tion to such assets as may have been shown by the evidence to have no value at all, provided there is such evidence as to any of the assets of said bank.^ (2) The court instructs the jury that in determining the con- dition of the bank on the day of , , you should consider the reasonable market value of the assets of the bank on hand, as compared to its liabilities on that day. All consideration of the condition of the bank is confined to the day of , ; but you may consider any evidence that may be before you showing its condition immediately before that day, if there is any such, to aid you in determining its condition on that day.* (3) The court instructs the jury that a banking institution is in failing circumstances when it is unable to meet the demands of its depositors in the usual and ordinary course of business, N. E. 4S4; Sams Automatic Car 38 L. R. A. 485, 63 Am. St. 433; Coupler Co. v. League, 25 Colo. 129, State v. Clements, 82 Minn. 434, 85 54 Pac. 642 ; Peck v. Peck, 124 Wis. N. W. 229. 550, 103 N. W. 5. » State v. Darragh, 152 Mo. 522, 54 ' State V. Darragh, 152 Mo. 522, 54 S. W. 226. See also State v. Eifert, S. W. 226. Receiving deposits with 102 Iowa 188, 71 N. W. 248, 38 L. knowledge of insolvency, see State R. A. 485, 63 Am. St. 433. V. Eifert, 102 Iowa 188, 71 N. W. 248, 221 BANKS AND BANKING. § I90 and this is true even though you shall believe that there was at the time a stringency in the money market." (4) The court instructs the jury that in determining the value of any of the assets of the Bank on the day of , , as shown on this trial, the testimony of expert witnesses who have testified before you, if deemed by you unreasonable, may be disregarded.^^ § 190. Receiving deposits with knowledge of insolvency — Criminal prosecution. — (1) The court instructs the jury that if they believe from the evidence that on , , the witness — — did deposit in the Bank, a banking institution doing business in the state of , at the county of , state afore- said, dollars, or any part thereof, of the value of dollars or more, lawful money of the United States, of the money and property of the witness ; and shall further believe from the evidence that the said deposit was not taken and received by the defendant himself, but was taken and received by some other person, but that such other person was then and there in the employ of the said Bank, and acting under the direction and control of the defendant in said employment, and that such other person had general power and authority from the defendant to receive deposits of money into said bank, and that said bank was then and there in failing circumstances, and the defendant had knowledge that said bank was there and then in failing circum- stances, — they will find the defendant guilty as charged.^^ " State V. Darragh, 152 Mo. 522, 54 " State v. Darragh, 152 Mo. 522, 54 S. W. 226. See State v. Clements, 82 S. W. 226. Receiving deposits with Minn. 434, 85 N. W. 229; State v. knowledge of bank's insolvency, see Eifert, 102 Iowa 188, 71 N. W. 248, State v. Eifert, 102 Iowa 188, 71 N. 38 L. R. A. 485, 63 Am. St. 433. W. 248, 38 L. R. A. 485, 63 Am. St. " State V. Darragh, 152 Mo. 522, 54 433. Prosecution of officer of na- S. W. 226 (the refusal of this in- tional bank for making false entries, struction by the trial court was held see Peters v. United States, 94 Fed. to be erroneous). See Kansas City 127, 36 C. C. A. 105. Purchase of V. Butterfield, 89 Mo. 646, 1 S. W. worthless bonds by bank president, 831 ; St. Lbuis v. Ranken, 95 Mo. with intent to defraud bank, see Ag- 189, 8 S. W. 249; Cosgrove v. Leon- new v. United States, 165 U. S. 36, ard, 134 Mo. 419, 33 S. W. 777 ; Hull 7 Sup. Ct. 235, 41 L. ed. 624. ' V. St. Louis, 138 Mo. 618, 40 S. W. S9, 42 L. R. A. 753. 8 IPO INSTRUCTIONS FORMS. 222 (2) The court instructs the jury that it is no offense for an officer of a bank to assent to the receipt of a deposit by such bank when the same is in faihng circumstances, if at the time of re- ceiving such deposit the officers did not at the time know it was in failing circumstances; but in taking into consideration the question as to whether or not the bank in question was in fail- ing circumstances on the day of , , and as to whether or not the defendant had knowledge on that day of its condition, you may consider all the facts and circumstances in evidence before you/^ (3) The court instructs the jury that if you shall believe from the evidence that the defendant, at the county of and state of , at any time within years next before the day of , , was the president of the ■ Bank, and that the same was a corporation, and doing business as a banking institu- tion in said county and state, did then and there unlawfully and feloniously assent to the taking and receiving on deposit in said banking institution the money of to the amount of dollars or more, and that said banking institution was then and there in failing circumstances, and that the defendant was then and there the president of said banking institution, doing busi- ness as such, and that the defendant had knowledge at the time when such deposit was received that said banking institution was in failing circumstances, you will find the defendant guilty, and assess the punishment by imprisonment in the penitentiary for any time not less than two years and not more than five years. "Feloniously," as used in these instructions, means wickedly and against the admonition of the law; unlawfully." (4) The court instructs the jury that although by the statute the failure of the Bank is made prima facie evidence of knowledge on the part of the defendant that the same was in failing circumstances on the day of , , yet the bur- " State V. Darragh, 152 Mo. 522, 54 State v. Eifert, 102 Iowa 188, 71 N. S. W. 226. Intent to defraud bank, W. 248, 38 L. R. A. 485, 63 Am. St. see Agnew v. United States, 165 U. 433. Prosecution of officer of na- S. 36, 17 Sup. Ct. 235, 41 L. ed. 624. tional bank for making false entries, " State V. Darragh, 152 Mo. 522, 54 see Peters v. United States, 94 Fed. S. W. 226. Receiving deposits with 127, 36 C. C. A. 105. knowledge 'of bank's insolvency, see 223 BANKS AND BANKING. § I9O den of proving the state's case is not really changed. The law- enables the state to make a prima facie case by proof of the as- senting to the creation of said indebtedness and the reception of the money into the bank; but the defendant can show the condi- tion of the bank, and the circumstances attending the failure, and any facts tending to exonerate him from criminal liability, and then, on the whole case, the burden still rests on the state to establish defendant's guilt beyond a reasonable doubt. The pre- sumption of innocence with which the defendant is clothed, and never shifts, rests with him throughout the case, notwithstanding a prima facie case may have been made out by the state."^'^ (5) The court instructs the jury that in considering the con- dition of the bank on the day of , , you will not take into account the dollars of capital stock as a liability. The court instructs the jury that the indictment, of itself, is no evidence of guilt." (6) The court instructs the jury that the failure of the bank- ing institution in question is prima facie evidence of knowledge on the part of its president that the same was in failing circum- stances on , . The court instructs the jury that prima facie evidence is such that raises such a degree of probability in ^°The refusal of this instruction in the mind of the jury by reason was held to constitute error. It is of the phraseology of this paragraph ■'a clear and concise presentation of than would have been if the words the principle by which the jury 'of itself had been left out. While should have been governed in arriv- the hypothetical significance of these ing at their verdict under the statute words, contended for, might appear, governing the case." State v. Dar- perhaps, to the acute perception of ragh, 152 Mo. 522, 54 S. W. 226. the skilled verbal critic, we are satis- "° Particular objection was made in fied that such significance would not this case to the use of the words "of appear to or influence the practical itself" in the foregoing form. "In mind of the ordinary juror." State the trial of every criminal case," says v. Darragh, 152 Mo. 522, 54 S. W. the Supreme Court of Missouri, in 226. Prosecution of bank official for disposing of this objection, "the ju- false entries, see Peters v. United rors are necessarily advised that the States, 94 Fed. 127, 36 C. C. A. lOS. defendant has been indicted for the Prosecution for purchase of worthless offense charged, and it does not ap- bonds, see Agnew v. United States, pear to us at all probable that any 165 U. S. 36, 17 Sup. Ct. 235, 41 L. greater weight was given to that fact ed. 624. 8 I go INSTRUCTIONS FORMS. 224 its favor that it must prevail unless it be rebutted, or the con- trary proved." "State V. Darragh, 1S2 Mo. 522, 54 479, 25 S. W. 573; State v. Eifert, S. W. 226. For similar instructions, 102 Iowa 188, 71 N. W. 248, 38 L. R. see State v. Sattley, 131 Mo. 464, 33 A. 485, 63 Am. St. 433. S. W. 41; State v. Buck, 120 Mo. CHAPTER XXV. BILLS AND NOTES. Section Section 191. Execution of note — Ratification 199. Promise of released indorser to of signature. pay. 192. Execution of note — Failure to 200. Purchase-money notes. read. 201. Purchase-money notes — Farm 193. Execution of note — Genuineness implements. of signature. 202. Note to secure payment of check 194. Consideration. — Computation of interest. 195. Consideration for guaranty. 203. Lost note. 196. Acceptance of guaranty. 204. Bona fide purchasers. 197. Consideration — Extension of 205. Bona fide purchasers — Proof of time for payment of note. good faith. , 198. Parol agreements. 206. Payment of note. § 191. Execution of note — Ratification of signature. — The court instructs the jury that before you should find that defend- ant ratified the signature on said note, if you find he did not sign the note personally, and that hie name was not signed on said note by his authority, you should find, from the evidence, that he knew what note he was talking about.^ § 192. Execution of not& — Failure to read. — The court in- structs the jury that it is the duty of one signing his name to an instrument to read it, if he can read it, or to bring such ability to read as he possesses into use, so far as it may enable him to identify the character of the instrument, or, if he can not read at all, to otherwise learn the contents of the instrument he is sign- ing, so that he may not be imposed upon by fraud, or sign a note that may cause innocent purchasers thereof to suffer. He is chargeable with any neglect in failing to perform this duty. 'Renner v. Thornburg, 111 Iowa on similar line, see Groff v. Groff, 209 SIS, 82 N. W. 950. For instruction Pac. 603, 59 Atl. 65. 225 IS — Branson's Inst. § 193 INSTRUCTIONS FORMS. 226 Whether or not the defendant was guilty of any neglect in sign- ing the note the way he did is a question of fact for you to de- termine from all the facts and circumstances of the case, taking into consideration the evidence as it may bear upon the question to what extent the defendant was illiterate, and whether or not he was without negligence in the care exercised by him to know the contents of the instrument before he signed it.^ § 193. Execution of note — Genuineness of signature. — The court instructs the jury that in determining the issue whether or not the signature, "C. J.," appearing upon the notes in evi- dence, is the genuine signature of the president of the Building and Loan Association, at the date of the said notes, you are not bound by the fact that the witness, C. J., is the person whose signature is under consideration, to consider the testi- mony of the said C. J. himself on this issue as conclusive or con- trolling ; but you must consider the testimony of the said C. J. ' and that of each and every other witness, bearing upon this issue, and give to such testimony and all the evidence such weight and credibility only as, in your judgment, and under your oath as jurors, you think the same entitled to. And in determining upon your verdict you must consider all the evidence and every fact and circumstance in evidence before you ; and if, after fully con- sidering the testimony of all the witnesses and all the facts and circumstances developed by the evidence, you are reasonably satisfied that the said C. J., as president of said association, did sign the name "C. J." to said notes, then your verdict must be for the plaintiflfs.^ § 194. Consideration. — (1) The court instructs the jury, for the plaintiff, that if they believe, from the evidence, that the plaintiff, in the month of , in the year , in good faith supposed he had a cause of action against the defendant on ac- count of personal injuries which he believed resulted from the conduct of the defendant, and thereupon threatened to sue the "First State Bank v. Borchers, 83 Dolvin v. American Harrow Co., 131 Nebr. 530, 120 N. W. 142. For other Ga. 300, 62 S. E. 198. instructions of like character, see ' Sanders v. North End Bldg. &c. Assn., 178 Mo. 674, 11 S. W. 833. 22/ BILLS AND NOTES. § I94 defendant on account thereof, and thereupon the difference be- tween them was compromised and the defendant executed the note sued on in consideration that the plaintiff would not sue him for such injuries, and the plaintiff accepted the note in set- tlement of such claim,, such' compromise and settlement is a good and lawful consideration for such note.* (2) The court instructs the jury that it is contended on the part of the defendants that, if the said E. H. D. executed said note to the plaintiff, he did it upon consideration that the plaintiff would quit the patent-right business, go home and stay with his family, and sell no more patent rights or gates as long as E. H. D. lives; but the defendants further contend that the consideration of said note has failed, and that the plaintiff after the making of said note sold patent rights and gates, and therefore said note is void. The burden of proof is on the defendants to prove this contention by a preponderance of the evidence. In order to de- feat the collection of said note under this branch of the defend- ants' contention, the defendants must prove by a preponderance of the evidence that all said consideration failed. If all the con- sideration of said note did not fail, then the note is valid, so far as the consideration is concerned.^ (3) The court instructs the jury that if you find from the evidence that the note in suit was executed by decedent, E. H. D., and that the sole consideration of E. R. that he would quit the patent-right business, and not sell any more patent rights so long as E. H. D. should live, and go home and stay with his family, and sell no more patent rights so long as said E. H. D. lived ; and if you further find from the evidence that after the execution of said note, and during the lifetime of said E., said R. failed to * Parker v. Enslow, 102 111. 272, 40 tion of consideration and delivery, Am. Rep. 588. see Zimbleman v. Finnegan, 141 Iowa "Ray V. Moore, 24 Ind. App. 480, 358, 118 N. W. 312. Permitting di- 56 N. E. 937. For similar instruc- vorce suit to go by default as con- tions, see First Nat. Bank v. Wis- sideration, see Robinson v. Robin - dom, 111 Ky. 135, 63 S. W. 461 ; Chi- son, 147 Iowa 615, 125 N. W. 216. cago Title &c. Co. v. Brady, 165 Mo. Conditional sale of corporate stock, 197, 65 S. W. 303. Void for usury see Key v. Usher, 33 Ky. L. 575, 110 and want of consideration, see Evans S. W. 415. V. Lafayette, 29 Kans. 736. Presump- § 195 INSTRUCTIONS FORMS. 228 keep his said promise, and during said period did not quit the patent-right business, and did not go home and stay with his family, but during said period did engage in the patent-right business, did sell or attempt to sell patent rights, either on his own account, or as partner, assistant, or agent of another, — then I instruct you the consideration of the note failed, and you should find for the defendants." § 195. Consideration for guaranty. — The court instructs the jury that it is admitted by the pleadings, and appears con- clusively by the evidence and pleadings, that B. F. S., during his lifetime, signed the guaranty set forth in the complaint. You should therefore take that as a conceded fact. If the name of the said B. F. S. was written on the back of the instrument set up in the complaint after its delivery to the holder thereof, then the said B. F. S. would not be liable thereon, unless he should have received some new consideration therefor, and there should be no recovery against him. But where the guaranty imports and recites a consideration, it raises a presumption of consideration, and would be sufficient to authorize a recovery until overcome by proof ; and the burden of proof would be upon the defendant to establish by a preponderance of the testimony that it was made without consideration.'' § 196. Acceptance of guaranty. — The court mstructs the jury that, if the guaranty was in fact accepted by the plaintiff, and knowledge of such acceptance of it was in fact brought home to the defendant, it is sufficient without proof of notice from the guarantee. If the jury find that defendant had knowledge of the acceptance, if any, of the guaranty, no special notice of the ac- ceptance of the guaranty or the offer of guaranty was necessary.' "Ray V. Moore, 24 Ind. App. 480, Co. v. Shreve, 94 Mo. App. 518, 68 56 N. E. 937. S. W. 376. ' Rattlemiller v. Stone, 28 Wash. ' N. O. Nelson Mfg. Co. v. Shreve, 104, 68 Pac. 168. Contract of guar- 94 Mo. App. 518, 68 S. W. 376. See anty, see Pfaelzer v. Kau, 207 111. Long & Allstatter Co. v. Barnes, 162 116, 69 N. E. 914; Sams Automatic Ind. 22, 69 N. E. 454; Pfaelzer v. Car Coupler Co. v. League, 25 Colo. Kau, 207 111. 116, 69 N. E. 914. 129, 54 Pac. 642; N. O. Nelson Mfg. 229 BILLS AND NOTES. § 200 § 197. Consideration — Extension of time for payment of note. — The court instructs the jury that if you believe from the evidence that on or about the day of , , the plaintifif, through its cashier and agent, G. S. H., as a part of the consideration that the defendants C. M. B. would sell to one G. W. L. 4,000 bushels of corn, that he would extend the time for the payment of the note in controversy days from the day of , , and the defendant J. B. did not consent to the same, then such agreement on the part of H. for the plain- tiff should be deemed sufficient to support a consideration, and your verdict should be for the defendant J. B.® § 198. Parol agreements. — The court instructs the jury that what the contract was between these parties is to be deter- mined by the writing — the note itself. This is not to be con- trolled or altered or varied by proof of any parol or verbal agree- ment or understanding between them at or before the time of signing the note.^" § 199. Promise of released indorser to pay. — The court instructs the jury that if the defendant, knowing all the facts which released him from liability, and knowing or believing him- self to be discharged from liability as indorser, promised to pay the note, they would be warranted in finding for plaintifif.^^ § 200. Purchase-money notes. — ^The court instructs the jury that, in order for the plaintiff to recover in this case, it is not necessary that his money should have gone into the farm at the time it was purchased jointly by the defendant with H. and D. If afterward the property was sold to a third person and purchase-money notes were given for said land by such third person, and the plaintiff purchased said notes, and while holding "Bank of Horton v. Brooks, 10 "Hobbs v. Straine, 149 Mass. 212, Kans. App. 576, 62 Pac. 67S. See Dow 21 N. E. 365. As to payment and Law Bank v. Godfrey, 126 Mich. 521, discharge, see Dow Law Bank v. 85 N. W. 1075, 86 Am. St. 559. Godfrey, 126 Mich. 521, 85' N. W. " Cook V. Brown, 62 Mich. 473, 29 1075, 86 Am. St. 559. Status of de- N. W. 46, 4 Am. St. 870. See Ox- fendant as indorser, see Oexner v. ford Junction Savings Bank v. Cook, Loehr, 133 Mo. App. 211, 113 S. W. 134 Iowa IBS, 111 N. W. 805. 727. 8 20I INSTRUCTIONS FORMS. 23O said purchase-money notes was induced by the defendant to part with the same and allowed the same to become converted by the representations of the defendant that the plaintiff would thereby obtain title or interest in such farm or any part thereof, and if he parted with said notes and the plaintiff believed and relied on such representations, then this would create such an equity in the plaintiff, W., as would authorize you, and it would be your duty, to find the value of such note as was invested in the farm, provided, however, that you could not find that more than the sum of dollars was so invested.^^ §201. Purchase-money notes — Farm implements. — (1) The court instructs the jury that if you find from the evidence that defendant, , took and used the machine and retained it for three seasons, making no complaints of the machine to (name of plaintiff), you have a right to presume that he was satisfied with and intended to keep the machine, and, if you so find, you will return a verdict for the plaintiff.^^ (2) The court instructs the jury that simply because the ma- chine failed to give satisfaction to the defendant does not relieve him from the payment of the note ; it devolves upon him to show that the machine was a failure as a binder, and did not do good work, and that when he learned that the machine failed to do good work he notified the plaintiff of such fact and returned, or offered to return, the machine to plaintiff; and if he retained the machine, making no complaint and no offers to return the ma- chine, but kept using it without complaint for two or three sea- sons, it- would then be too late to complain or to return the ma- chine and in such case he should pay the note sued on.^* "Brock V. Wildey, 132 Ga. 19, 63 be in his favor. This was right." S. E. 794. Bartling v. Behrends, 20 Nebr. 211, ""It is entirely competent," says 29 N. W. 472. the Supreme Court of Nebraska, "It was objected that this instruc- "for a trial court to instruct a jury tion had the effect of saying that the upon the law bearing upon the the- defendant would be liable on the ory of each party to the suit. This ground that he made no complaint, instruction contains the elements of The higher court says: "We can plaintiff's theory of the case and the not see that this instruction is sub- jury are told that if they find with ject to the criticism made. The jury him on the facts, this verdict should are squarely told that the mere fail- 231 BILLS AND NOTES. § 202 § 202. Note to secure payment of check — Computation of interest. — The court instructs the jury that if they shall find from the evidence in this case that the defendant drew the check on the First National Bank for dollars to the order of S. W. P., offered in evidence; that the said S. W. P. indorsed the same in blank and deposited it in his account with the S. Trust and Deposit Company; that said company thereupon placed the amount thereof to the credit of said S. W. P. on his said account ; that said S. W. P. afterward withdrew from his said account with said company the whole amount of said check ; and that the defendant notified the said First National Bank to stop payment on said check ; and said check was presented for payment to said bank and payment was refused and has never been made; and shall further find from the evidence that after payment was so refused the said S. W. P. delivered to said S. Trust and Deposit Company two promissory notes, for dollars and dol- lars respectively, drawn by said S. W. P. and M. O. P., his wife, to the order of the defendant, upon the condition that the defend- ant was to indorse said notes and the said S. Trust and Deposit Company was to hold them as security for the payment of said check and credit the respective amount of said notes, when paid, upon the amount due upon said check ; and shall further find from the evidence that the defendant refused to indorse said notes, and that subsequently said S. W. P. paid up the sum of dollars on account of said check and gave the said S. Trust and Deposit Company a promissory note for dollars, drawn by said S. W. P. and M. O. P., his wife, to the order of said S. W. P., and by them indorsed in blank, in renewal of said note for dollars, upon the condition that the defendant was to in- dorse said renewal note and said company was to hold the same, with said note for dollars, as security for the payment of said check, and credit the respective amounts of said notes, when paid, upon the amount due upon said checks; and shall further ure of the machine to give satisfac- that it did not do good work ; that tion to the defendant would not re- he notified plaintiff of the fact, and lieve him from liability, but that he that he returned, or offered to re- must go further, and show that the turn, the machine." Bartling v. Beh- machine was a failure as a binder; rends, 20 Nebr. 211, 29 N. W. 472. 8 203 INSTRUCTIONS FORMS. 23; find that the defendant refused to indorse said note for dollars, and that none of said notes have ever been paid, then the plaintiff is entitled to recover the full amount of said check, with interest thereon from the date thereof, less said sum of dollars with interest thereon from the date of said note for dollars. And the jury are further instructed that they should make a calculation and find the interest and add it to the whole amount, instead of making the verdict for a certain amount and interest. The jury are to make all the calculations.^^ § 203. Lost note. — The court instructs the jury that if they find from the evidence that J. E. made, executed, and deliv- ered to the plaintiff, A. F. J., his promissory note, dated , 19-^, whereby he promised to pay to her the sum of $ , one year after date, with interest thereon at the rate of per cent. per annum from date, then you will find for the plaintiff in the said sum of $ , together with interest thereon at the rate of per cent, per annum from , 19 — , until the present date, although said note was not produced in court or offered in evi- dence; provided that you find from the evidence that said note has been lost or destroyed, and was at the time of its loss or de- struction the property of the plaintiff and was then unpaid." § 204. Bona fide purchasers. — (1) The court instructs the jury that inland bills of exchange and promissory notes payable in a bank in this state are governed by what is called the "law merchant"; that is to say, as applicable to the issues raised in this cause, if you believe from all the evidence in the case that the plaintiffs, in the usual course of business, purchased from M. and C. the note sued on for a valuable consideration, before the maturity of said note, without any notice of any defense or equity existing against the same, and that at the time of their purchase they had no knowledge of such facts as put them upon inquiry, then they are entitled to recover, even though, as between the '"Weant v. Southern Trust &c. Co., "Jenkins v. Emmons, 117 Mo. App. 112 Md. 463, 77 Atl. 289. . 1, 94 S. W. 812. 233 BILLS AND NOTES. § 204 defendant and the original payees of the note, there existed equities in favor of the defendant." (2) The court instructs the jury that you will find for the plaintiff the amount of the first two notes. As to the other notes, the question for you to decide is whether or not the bank pur- chased them in good faith. The burden of proof is on the de- fendant to show that the bank had actual knowledge of the de- fense made here when it bought the notes, or had actual knowl- edge of such facts indicating the defense that its action in taking the instruments amounted to bad faith. If the bank had such knowledge you will find for the defendants as to the last three notes. If it had not, you will find for the plaintiff on all the notes." (3) The court instructs the jury that if you find, from all the evidence, that the plaintiffs are the owners of the note described in the complaint, that the same is a negotiable note, and that the plaintiffs took it before maturity, in the usual course of business, without notice of facts which impeached its validity between the original parties to the note, or of such facts as should have put them upon inquiry, then the plaintiffs hold the same by a good title free from all defenses that might have been made by the defendant if it had been sued on by M. and C. And the court further instructs the jury that, unless there are circumstances which excite suspicion, the purchaser is not bound to make in- quiry at the time of purchase.^^ (4) The court instructs the jury that so abhorrent is fraud, however, in the law, that even a bona fide purchaser of a promis- sory note in the ordinary course of business, for a valuable con- sideration, before maturity, and without notice of the fraud, can only recover upon such note, if procured by fraud, the amount "Warren v. Syfers, 23 Ind. App. ■'Old Nat. Bank of Ft. Wayne v. 167, 55 N. E. 103. For similar in- Marcy, 79 Ark. 149, 95 S. W. 145. structions, see Citizens' Nat. Bank '"Warren v. Syfers, 23 Ind. App. V. Weston, 162 N. Y. 113, 56 N. E. 167, 55 N. E. 103. For similar in- 494; Kirby v. Berguin, 15 S. Dak. structions, see Citizens' Nat. Bank v. 444, 90 N. W. 856; Matlock v. Scheu- Weston, 162 N. Y. 113, 56 N. E. 494; erman, 51 Ore. 49, 93 Pac. 823, 17 L. Kirby v. Berguin, IS S. Dak. 444, 90 R- A. (N. S.) 747 (check for gam- N. W. 856. Ming debt). § 204 INSTRUCTIONS FORMS. 234 actually invested by him, with interest. If, however, you find that W. procured this note by fraud from the defendant, as plain- tiff has failed to show how much he gave therefor, but has shown that, as respects the alleged fraud, he was a bona fide purchaser in the ordinary course of business, for a valuable consideration, before maturity, and without notice, your verdict should be for him for a dime or a dollar.^" (5) The court instructs the jury that if you believe from the evidence that at the time H. G. M. [cashier of the plaintiff bank] purchased the note in controversy from I. D. M. [a payee] that said H. G. M did not have notice that said note had been pro- cured by fraud or misrepresentations, or knowledge of such facts in relation thereto so that his action in taking said note amounted to bad faith on his part, then you will find in favor of the plaintiff against W. V. C. [the maker of the note] for the amount sued for on the note.^^ (6) The court instructs the jury that if you should find that the said note and the signatures of defendants thereto were ob- tained through the fraud of the payees or on account of the payees' having warranted the horse to be sound when he was not, then the burden is upon the plaintiffs to show by a preponder- ance of evidence that they acquired said note in the ordinary course of business, for value, before maturity, and without notice of such fraud or breach of warranty or of either of these, or of any other fact or circumstances which would amount to actual bad faith on their part should they not make an investigation as to the same before they can recover. To constitute notice of an infirmity in the instrument, the person to whom it is negotiated must have actual knowledge of the infirmity or defect or knowl- ^'' Wray v. Warner, 111 Iowa 64, 82 v. Young, 137 Iowa 281, 114 N. W. N. W. 4SS. For similar instructions, 1041 (title of person negotiating in- see French v. French, 133 Fed. 491, strument). 66 C. C. A. 36S (as to ownership and ""The refusal of this instruction transfer of notes). Limitation on was, upon the facts in evidence, re- plaintiff's bona fides held as favorable versible error. First Nat. Bank of to defendant as could^be expected, see Aubrey v. Chapman (Tex. Civ. App.), People's Bldg. &c. Assn. Co. v. Rutz, 164 S. W. 900. 158 Mich. 440, 123 N. W. 6; Hawkins 235 BILLS AND NOTES. § 205 edge of such facts that his action in taking the instrument amounted to bad faith.^^ (7) The court instructs the jury that the purchaser of a note who, before purchase, is told that the maker refuses to pay it, is not a bona fide purchaser.^^ (8) The court instructs the jury that the burden of proof rests upon plaintiff to show that he is a bona fide purchaser of the note, for value, and before maturity, and that question is submitted to you. You have no right arbitrarily to say that you disbelieve a witness unless you believe from the evidence that you have just cause, under all the evidence in the case, to disbelieve him. But the question of fact is for you to determine whether or not the purchaser of the note [the witness S.], who claims to have bought it for the plaintiff, and who claims to have made some inquiries about it, bought the note in good faith, and for valuable consid- eration, without any knowledge or notice of any defense to it.^* § 205. Bona fide purchasers — Proof of good faith. — The court instructs the jury that the positive statement of the plain- tiff as to his actions in purchasing the note in question are not necessarily to be taken as conclusive by the jury, but you should consider all of the circumstances and facts known and given in evidence and determine from all of the facts and circumstances surrounding the alleged purchase, together with statements of the plaintiff, as to whether or not the plaintiff is such bona fide purchaser.^' "Bank of Bushnell v. Buck (Iowa), "Landauer v. Sioux Falls Imp. Co., 142 N. W. 1004. For other approved 10 S. Dak. 205, 72 N. W. 467. Ac- instructions on this subject, see Jack- tion on contract of guaranty, see son V. Jones, 94 Ark. 426, 127 S. W. Aultman &c. Co. v. Roemer, 112 710; Childers v. Billiter, 144 Ky. S3, Iowa 651, 84 N. W. 668; Long & 137 S. W. 795 ; Link v. Jackson, 164 Allstatter Co. v. Barnes, 162 Ind. 22, Mo. App. 195, 147 S. W. 1114. 69 N. E. 454; Pfaelzer v. Kau, 207 "Old Nat. Bank v. Marcy, 79 Ark. 111. 116, 69 N. E. 914. 149, 95 S. W. 145. For similar in- '"With reference to this instruc- structions, see Citizens' Nat. Bank tion, the court says: "We see no V. Weston, 162 N. Y. 113, 56 N. E. objection to this instruction. It 494; Kirby v. Berguin, 15 S. Dak. seems to comprehensively advise the 444, 90 N. W. 856; First State Bank jury that the positive statements of V. Borchers, 83 Nebr. 530, 120 N. W. the plaintiff in relation to the pur- 142. chase of the note are not conclusive, § 206 INSTRUCTIONS FORMS. 236 § 206. Payment of note. — (1) The court instructs the jury that the defendant claims that the note in controversy was fully paid, principal and interest, before the action was commenced. The burden of proof is on the defendant to prove by a preponder- ance of the evidence that he paid the note before the action was commenced, and, if defendant has so proved, then your verdict should be for defendant.^" (2) The court instructs the jury that the receipts and other writings introduced in evidence in this case are prima facie evi- dence of the receipt of the money, and are not conclusive, and may be qualified and explained by other competent evidence ; and, in determining the truth in relation thereto, you will take into consideration all the evidence introduced bearing upon this point. 27 and that the jury may consider all termine from the evidence the weight the circumstances and facts known and eflfect of the plaintiff's state- and given in evidence, and from such ments." Park v. Brandt, 20 Idaho facts and circumstances, together 660, 119 Pac. 877. with the statements of the plaintiff, """Gravert v. Goothard, 81 Nebr. 99, determine whether the plaintiff was 115 N. W. 559. a bona fide purchaser. We think "' Mills v. State, S3 Nebr. 263, 73 N. this is a correct statement with ref- W. 761. erence to the duty of the jury to de- CHAPTER XXVI. BOUNDARIES. Section Section 207. Long acquiescence in division 210. Certain and uncertain natural line — Mutual agreement be- objects. tween owners of land. 211. High and low water mark 208. Government corners — Expert 212. High and low water mark — Land testimony. on seaboard. 209. Natural objects and artificial monuments. § 207. Long acquiescence in division line — Mutual agree- ment between owners of land. — The court instructs the jury that before you can find for defendant, on the issue that the sur- vey in the lane now dividing plaintiff's and defendant's field has been agreed upon as the division or'boundary line between the southeast quarter of the southeast quarter of section twenty-eight and the northeast quarter of the northeast quarter of section thirty-three, you must be satisfied, from the evidence, that there was a mutual agreement between the owners of the land to that . effect. The fact that F., the former owner in section thirty- three, erected the south line of fence along the lane and cultivated the lands on the south side of such lane will not of itself alone be sufficient to prove such consent and agreement. You are fur- ther instructed that in determining whether the land which di- vides the plaintiff's and defendant's property has or has not been agreed upon between the former owners of adjacent property as the division or boundary line, it is proper that you take into con- sideration the long acquiescence of adjoining owners to such line of division.^ § 208. Government corners — Expert testimony. — The court instructs the jury that, in this action, different witnesses, 'Coleman v. Drane, 116 Mo. 387, 22 S. W. 801. 237 § 209 INSTRUCTIONS FORMS. 238 not surveyors or civil engineers, have testified as to the existence of government corners on the exterior Hne of the Military Reservation, and you are instructed that it requires no profes- sional skill or mathematical knovi^ledge to qualify vi^itnesses to testify as to the existence of governmental corners; and in this case you should give the testimony of such w^itnesses such weight as, under all the circumstances of the case, you think them en- titled to.^ § 209. Natural objects and artificial monuments. — The court instructs the jury that if from the evidence you find that some of the calls for natural objects in the grant can not be ascer- tained, or, in other words, if the natural objects are not all identi- fied and some of them are, then, and in that case, you will locate the grant with reference to those that are made certain, whether course and distance would reach the natural objects or not; but in case no natural or artificial objects called for can be found and established, then artificial monuments would be of next con- trolling power; these failing, then course and distance would be the next best means of locating the true boundary of the grant.^ § 210. Certain and uncertain natural objects. — The court instructs the jury that if you find from the evidence, after apply- ing the evidence to the calls of the patent, that some or any of the • natural objects called for are uncertain or doubtful and some are certain, the certain ones will govern you in establishing the boundaries of the land.* §211. High and low water mark. — The court instructs the jury that if they believe from the evidence that the division line between the upland of the plaintiff, , and those under whom she claims, and the uplands of the defendant and those 'Oldfather v. Ericson, 79 Nebr. 1, Votaw, 150 U. S. 24, 14 Sup. Ct. 1, 112 N. W. 356. i1 L. ed. 983. ° The instruction was held to be a * The instruction was held to be correct statement of the law pertain- correct and applicabla to the evi- ing to the question of conflicting dence. New York and Texas Land boundaries and, further, to be appli- Co. v. Votaw, ISO U. S. 24, 14 Sup. cable to the facts in evidence in this Ct. 1, 37 L. ed. 983. case. New York &c. Land Co. v. 239 BOUNDARIES. §212 under whom he claims, is a straight Hne for some distance be- fore it reaches high water mark, then the law continues such line in the same course to low water mark, and, if the course of such line has been changed below high water mark, the burden is vipon the plaintiff to show it, but in deciding this question the jury- should consider all the evidence heard in -the case.° § 212. High and low water mark — Land on seaboard. — The court instructs the jury that by statute the bounds of every man's land lying on the seaboard is extended to ordinary low water mark, and that a drain or gut which goes bare at ordinary low water does not cut off or prevent the extension of such line, but the same is continued across and beyond such stream down to ordinary low water mark.® "The trial court, in refusing this "It was held that the trial court instruction, was held to have commit- committed error in refusing to give ted error. Whealton v. Doughty, 112 this instruction. Whealton v. Dough- Va. 649, 72 S. E. 112. ty, 112 Va. 649, 72 S. E. 112. CHAPTER XXVII. BREACH OF PROMISE OF MARRIAGE. Section Section 213. Nature of liability. 220. Evidence — Burden of proof. 214. Necessity of meeting of minds of 221. Evidence — Consideration of sur- parties to contract. rounding circumstances. 215. Immoral consideration. 222. Evidence — Effect of failure to 216. Illicit relations between parties introduce material vyitness. as justification for breach. 223. Evidence — Sympathy for party. 217. Plaintiff's character and reputa- 224. Elements of damages. tion. 225. Seduction in aggravation of dam- 218. Defendant's character. ages. 219. Effect of plaintiff's knowledge of 226. Consideration of defendant's facts that would prevent con- conduct, after refusal to carry summation of marriage. out contract on question of damages. § 213. Nature of liability. — The court instructs the jury that if they find from the evidence that on or about the day of , , plaintiff was single and unmarried, and that at such time defendant proposed marriage to plaintiff, and that plaintiff accepted such proposal, no definite time having been fixed for such marriage ; that thereafter defendant failed and refused to marry plaintiff, abandoned her, and declared to her that he did not intend to marry her, and denied, and still denies, that he made such proposal — ^then you shall find for the plaintiff.^ § 214. Necessity of meeting of minds of parties to con- tract. — The court instructs the jury that to constitute a con- tract to marry there must be a meeting of the minds of the con- tracting parties — that is, there must be an offer on the part of one and an acceptance on the part of the other. Such contract may be unspoken or unwritten, but enough must appear to show ' Broyhill v. Norton, 175 Mo. 190, defense, see Beans v. Denny, 141 74 S. W. 1024. Venereal disease as Iowa 52, 117 N. W. .1091. 240 241 BREACH OF PROMISE OF MARRIAGE. §215 that the minds of the parties met, and fix the fact that the parties are to marry as clearly as if put in formal words of offer and acceptance.^ § 215. Immoral consideration. — The court instructs the jury that it is claimed by the defendant that the promise of mar- riage, if there was any such promise, was not one resting upon mutual promises for its consideration. That is, the consideration of the contract was not one resting on mutual promises. But it is the theory of counsel for the defendant that if there was any such promise, and it is claimed there was not, of course, that it was as is shown by the proof according to his theory, in consid- ei-ation of defendant having and of plaintiff's submitting to sexual intercourse. That is to say, it is the theory of the defend- ant that the contract or the understanding or engagement here was one resting upon an immoral consideration, namely, the con- sideration that this woman would permit herself to have sexual intercourse with this man ; that it was an immoral and void con- sideration. On the other hand, the plaintiff claims that there was a promise or an understanding of marriage prior to the sexual relations. Now should you find the fact to be that the defendant promised plaintiff solely upon the consideration that she should permit him to have sexual intercourse with her, or solely on the consideration that she should have sexual inter- course with him, and if she became pregnant and had a child he would marry her, and that there was no other consideration or promise, then and in such case I instruct you that the promise to marry rests upon an immoral consideration and is void, and your verdict should be for the defendant. That is, if you find in this case that the only consideration for the promise, if there is any promise in the case, of marriage, was a promise that if she would submit herself to have sexual intercourse with him, he would marry her in case she became pregnant, if you find that that was the only consideration, the only arrangement or contract, then I instruct you that that is a contract resting upon an immoral con- " Hinckley v. Jewett, 86 Nebr. 464, bendorfer, 141 App. Div. 759, 126 N. 12s N. W. 1086. See Horner v. We- Y. S. 475. 16 — Branson's Inst. §2l6 INSTRUCTIONS FORMS. 242 sideration and is void, and the plaintiff could not recover. Should you find, however, that these parties did indulge in sexual inter- course, but should find the facts to be that the proposal of mar- riage was made by the defendant and accepted by the plaintiff, and that after this, because of such engagement, the defendant induced the plaintiff to have sexual intercourse with him, then I instruct you that this would not justify the defendant in refusing to consummate such marriage, and it would be no justification for him to break the contract. In other words, if you find that the promise was resting solely upon her submitting herself to sexual intercourse, then it is void.^ § 216. Illicit relations between parties as justification for breach. — The court instructs the jury that if you find that such proposal of marriage was made by defendant and accepted by plaintiff, then any illicit relations that may thereafter have occurred between plaintiff and defendant, induced by such prom- ise, can not justify defendant in refusing to consummate such marriage.* § 217. Plaintiff's character and reputation. — (1) The court instructs the jury that to some extent, as you have already seen, the character of the plaintiff is proper for you to know in deter- mining whether or not there was a contract. It is also essential in meting out justice between the parties to this case, if you get to the point where you think you should award damages to the plaintiff against the defendant, that you should know both the character and reputation of the plaintiff, the woman, at or about the time of the alleged breach of contract, because damages in a case of this kind depend in some measure upon the relation which the plaintiff sustained in the community in which she lived and depend in some measure upon her capacity to suffer from the affront which a breach would bring to her. You will observe that character is what a person actually is. Reputation is what the community in which that person lives thinks such a person is — the estimate that the community places upon such a person. In a breach of promise case the woman may be damaged in her 'Jaskolski v. Morawski (Mich.), 'Broyhill v. Norton, 17S Mo. 190, 144 N. W. 865. 74 S. W. 1024. 243 BREACH OF PROMISE OF MARRIAGE. §219 character by the breach and she may be damaged in her reputa- tion, and you can not know the extent of damage to either char- acter or reputation until you know what they were before the breach/ (2) The court instructs the jury that some testimony has been offered here by way of defense (whether it appeals to you or not is for you to say) suggesting that before the time of this alleged engagement the plaintiff was of unchaste character. If you find that fact to be established by a preponderance of the evidence, if that be the fact, and it is your judgment that her character in that respect was known to the defendant before the night on which this alleged contract was entered into, then you may consider that situation as bearing upon the probability of the defendant's proposing to make a woman of that character his wife." § 218. Defendant's character. — ^The court instructs the jury that the character of the defendant in this case is not directly at issue. The character of the defendant is known to this jury because it is in evidence. The jury is not here to impose any penalty or bring in any verdict against the defendant on account of his character, but you have a right to consider and should con- sider his character, as you know it from this evidence, in connec- tion with the question of the probability of this contract and as having possibly some bearing in deciding whether or not he was likely to make such a contract as is charged against hira.^ § 219. Effect of plaintiff's knowledge of facts that would prevent consummation of marriage. — The court instructs the jury that a mistake or ignorance of the law happens when a per- son, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect; and if you believe from the evidence in this case that the plaintiff was in full possession of all the facts which have been brought out in evidence with refer- ence to the relations existing between the defendant and his reputed wife, and that such erroneous conclusion, as to the legal "Young V. Corrigan, 208 Fed. 431. 'Young v. Corrigan, 208 Fed. 431. "Young V. Corrigan, 208 Fed. 431. 8 220 INSTRUCTIONS FORMS. 244 effect of such relations, was brought about by the fraud or impo- sition or misrepresentations of the defendant, and if you further find and believe that the defendant knew the legal effect of the re- lations which existed between him and his reputed wife, which would incapacitate him from making a lawful marriage contract with the plaintiff, and that he took advantage of her ignorance of such legal effect of the facts known to her, induced her to believe that he could legally marry her, and that she honestly and in good faith believed in the false and fraudulent statements thus made to her, and that she was ignorant of the legal effect of the facts which were known to her, in that event you should find for the plaintiff.^ §220, Evidence — Burden of proof. — (1) The court in- structs the jury that the burden of proof is on the plaintiff, and she must prove her case, as charged in her petition, by a pre- ponderance of the evidence; and, if the jury find from the evi- dence that she has failed to do so, they must find the issues for the defendant.^ (2) The court instructs the jury for the defendant that the plaintiff in this case claims that there was a contract entered into by and between the plaintiff and the defendant by which the de- fendant unconditionally promised and agreed to many the plain- tiff. To recover in this case, the plaintiff must prove by a pre- ponderance of evidence that the defendant did unconditionally agree and promise the plaintiff to marry her.^" § 221, Evidence — Consideration of surrounding circum- stances. — The court instructs the jury that in weighing the evidence which has been introduced before you in this case, you have a right to take into consideration and call to your assistance the knowledge and experience common to mankind, for the pur- pose of throwing light upon the question submitted for your determination. You may take into consideration the age of both plaintiff and defendant, the disparity or difference in their years, " Davis V. Pryor, 3 Ind, T. 396, 58 oral renewal, see Dean v. Skiff, 128 S. W. 660. Mass. 174. • Broyhill v. Norton, 175 Mo. 190, '" Richmond v. Roberts, 98 111. 472. 74 S. W. 1024. Written contract and 245 BREACH OF PROMISE OF MARRIAGE. g 222 the amount of the defendant's wealth, if the evidence shows him to be a man of wealth, the time, the place, the surrounding cir- cumstances under which the plaintiff claims the defendant prom- ised to marry her and had sexual intercourse with her/^ § 222, Evidence — Effect of failure to introduce material witness. — The court instructs the jury that it is the function of the lawsuit to get at the truth of a case and that it is the duty of the parties to a lawsuit to exhaust reasonably within their power, as the jury sees the power is within their reach, the ave- nues of testimony leading to a determination of the truth and in determining where the facts of this case lie, it is proper for you to look to the manner in which this case is presented to you to determine whether or not the parties to this case, either or both of them, have reasonably exercised the opportunities open to them to enlighten you* as to what the facts are, and if you find in the reason of things, as these circumstances illuminate your judgment, that there were reasonably at hand, within the com- mand of either party to this case witnesses who might give you valuable testimony upon any proposition who were not put upon the stand, you are permitted to draw such inferences as reason- able men would draw under such circumstances from the failure to employ such opportunity. Only reasonable diligence in the elucidation of the trutli is required of the parties, but there has appeared in this case a series of matters upon which one witness appears from this testimony to have been capable of speaking, who was not placed upon the stand — ^the mother of the plaintiff. She could have told us whether or not, in some degree at least, the witness T. M. told the truth. She could have told us in some degree or not whether in fact the plaintiff got home from Cleve- land on the morning of July ist or later. She could have told us whether or not the plaintiff had an engagement ring produced at or about the illuminating time. She could have thrown some light upon the credibility of Mrs. Jacobs and Mrs. Harrington. She could have told us something about Mt. Clemens and the "Dalrymple v. Green, 88 Kans. 673, 129 Pac. 1145, 43 L. R. A. (N. S.) 972. § 223 INSTRUCTIONS FORMS. 246 conduct of the plaintiff there. She could have told us something about this charge against the plaintiff of drinking, and I regret, in the capacity of the court, affording full opportunity to throw on to these transactions all the light reasonably possible, that she was not put upon the stand, and it is for you to draw such infer- ences as are reasonable under the circumstances because of the failure to put this person upon the witness stand. And if in your consideration of this case, as you review the testimony and go down the procession of witnesses and the series of facts to which they attempt to testify, you find that the defense any place was derelict in the exercise of reasonable diligence in putting the testimony of witnesses before you, you will draw just exactly the same inferences against the defendant.^^ § 223. Evidence — Sympathy for party. — ^The court in- structs the jury that you have no right to act upon your s3Tn- pathies without any proof; but if the proof happens to concur with your sympathies, you are not to disregard the proof because of that fact; you are to be governed by the proof in the case.^^ § 224. Elements of damages. — (1) The court instructs the jury that the measure of damage in this case is compensation to the plaintiff for breach of promise to marry her, which includes all damages sustained by her on account of injury to her feelings, affection, and wounded pride, as well as the loss of the marriage of the defendant. And if you further believe that by reason of such promise to marry her, if such was made by the defendant, he seduced her and begot her with child, and that child was born of said seduction, then you may add to said sum such other and further damages as in your sound discretion you believe she has sustained by reason of such seduction, and by reason of the dis- grace and humiliation she has thereby sustained, if any.^* (2) The court instructs the jury that if you find for the plain- tiff, you shall take into consideration, as may appear by the evi- dence, the length of the engagement ; the depth of plaintiff's de- votion, if any; her lack of independent means; her mortification "Young V. Corrigan, 208 Fed. 431. " Sheahan v. Barry, 27 Mich. 217. Comment on evidence, see Gorman v. "Huggins v. Carey (Tex. Civ. Fitts, 80 Conn. 531, 69 Atl. 357. App.), 149 S. W. 390. 247 BREACH OF PROMISE OF MARRIAGE. i>' 225 and injured feelings and affections, if any; her loss of marriage; her altered social condition, if any, caused by defendant's con- duct; and if you believe from the evidence that defendant's at- tempt to prove unchaste or improper conduct with others on the part of plaintiff was made without reasonable cause to beHeve that such charge could be proven, and you are satisfied that plaintiff is innocent of such charge, that fact shall be taken into consideration by the jury in aggravation of plaintiff's damages ; and you shall assess her damages at such amount as you believe she should recover, not exceeding twenty-five thousand dollars." §225. Seduction in aggravation of damages. — (1) The court instructs the jury that he is not informed as to what course the federal courts would pursue upon the question of whether or not seduction should be considered in aggravation of damages by any precedent that has come to my attention. In ■ some states that question is not to be considered at all, but I think the cur- rent of authority is, and I shall adopt it for your instruction here, that in a case where a breach of promise of marriage is at issue, in which seduction has followed the making of the con- tract, that fact is proper to be considered by the jury by way of enhancing or enlarging damages. So as there is something of that sort claimed in this case, I want this jury to go out of the box with a very clear understanding of what seduction is. It is not sexual intercourse merely between a woman theretofore chaste and a man. It is not merely the despoiling of a woman's virginity, not merely the dragging the woman down from a life of chastity to unchastity, but it is the despoiling of a woman's virtue against her will, yielding to seductive influences on the part of the man which she can not fairly withstand. A girl there- tofore pure in act, then unspoiled in act, but coming to the sexual act willingly, consciously, and in that mind participating, is not seduced. So you may go to the circumstances which preceded the going of the plaintiff to French Lick ; you may consider the degree of intimacy between the parties prior to her going there, "BroyhiU v. Norton, 175 Mo. 190, Pryor, 3 Ind. T. 396, 58 S. W. 660. 74 S. W. 1024. See also Davis v. § 225 INSTRUCTIONS FORMS. 248 the brief association they had together, and the places in which and the circumstances under which they associated in Pittsburg before she went to French Lick, whatever those places and circumstances you find to have been; you may consider the manner in which she was procured to go to French Lick; you may consider her confessed deception of her mother, the dis- tance she had to go, the knowledge of conditions when she got there, where she was and how she was surrounded by these men who were (one of them at least) a total stranger and the other of brief acquaintance, and then, gentlemen of the jury, you are permitted to draw from those circumstances and any other cir- cumstances that in your judgment illuminate her mind and dis- position such inferences as appeal to your judgment and deter- mine whether the first act of sexual intercourse which she had with the defendant was an act of seduction or was an act which she could reasonably have anticipated would be one of the fruits of her trip to Indiana, and if you find it was the latter, if you find it was one which she could have and should have reasonably anticipated, with what knowledge of the defendant she had as you find it in this testimony, I say to you that that was not a seduction, no matter whether she had theretofore been pure or not/' (2) The court instructs the jury that in relation to the meas- ure of plaintiff's recovery you are further instructed if you find she is entitled to recover for breach of promise of marriage, as hereinbefore instructed, then, in that event, you will determine whether she is entitled, to recover enhanced or additional dam- ages on account of seduction, as alleged by her in her petition; and in relation thereto you are instructed that if you further find from the evidence, by a preponderance thereof, that while the plaintiff and defendant were mutually promised in marriage, if they were so promised, and intending and expecting marriage, the defendant solicited, in consideration of such intention and expectation, and the plaintiff permitted in consideration of such "Young V. Corrigan, 208 Fed. 431. man v. Layman, 118 Iowa 590, 92 N. For other approved instructions on W. 710; Broyhill v. Norton, 175 Mo. this subject, see Hanson v. Johnson, l90, 74 S. W. 1024. 141 Wis. 550, 124 N. W. 506; Herri- 249 BREACH OF PROMISE OF MARRIAGE. § 226 expectation and intention, sexual intercourse with her, such facts may be considered by you in connection with the facts shown in relation to the plaintiff's character, in computing the damages in this case in so far as they tend, if they do tend to aggravate and increase the disgrace, mortificatiori, pain or distress of mind, which she has suffered by reason of the defendant's breach of contract for marriage alleged by the plaintiff in her petition; provided, however, that the plaintiff can not, in any event, re- cover of the defendant damages for seduction unless she was, at the time of such seduction, an unmarried woman of previously chaste character.^^ § 226. Consideration of defendant's conduct, after refusal to carry out contract on question of damages. — The court instructs the jury that if you find from the evidence that the de- fendant made a contract for marriage with the plaintiff, as set forth in these instructions, and afterward refused to carry out the same, and after such refusal circulated the fact of his seduc- tion of the plaintiff, and of his relations with her, that you may take such conduct on the part of the defendant in consideration in determining the measure of damages to be awarded plaintiff.^' " Lauer v. Banning, 152 Iowa 99, " Davis v. Pryor, 3 Ind. T. 396, 58 131 N. W. 783. S. W. 660. CHAPTER XXVIII. BRIDGES. Section Section .227. Duty to construct and maintain. 229. Constructive notice of unsafe 228. Duty to construct guard rails. condition.' §227. Duty to construct and maintain. — (1) The court instructs the jury that it is the duty of defendant, in constructing bridges across streams, to build them in a workmanHke and proper manner, having due regard for the safety of persons trav- ehng over them, and to maintain them in a safe condition.^ (2) The court instructs the jury that if yoti beheve from the evidence that the defendant did construct this bridge since — , , and did so build it in a workmanlike manner, and that it was in a reasonably safe condition for travelers to pass over it without danger, then you would be authorized to find for the defendant.^ § 228. Duty to construct guard rails. — The court instructs the jury that it was the duty of the defendant, in constructing the bridge, to do so in a workmanlike manner, and so maintain it that persons might drive over it in safety; and, if necessary, to make it ordinarily safe, to put up guard rails, then it was the duty of defendant to put up such guai"d -rails.^ § 229. Constructive notice of unsafe condition. — The court instructs the jury that, before you can return a verdict in favor ' It was held in this case that the of travelers. Bibb County v. Ham, use of the word "workmanlike,'' un- 110 Ga. 340, 35 S. E. 656. qualified, would have constituted er- "Bibb County v. Ham, 110 Ga. 340, ror. The objection was overcome, 35 S. E. 656. Personal injuries as however, by the context, showing result of defective bridges, see Com- that it was the county's duty to main- stock v. Georgetown Tp., 137 Mith. tain the bridge in such a manner as 541, 100 N. W. 788. to have "due regard for the safety" 'Bibb County v. Ham, 110 Ga. 340, 250 251 BRIDGES. § 229 of plaintiff upon either of the causes of action set forth in plain- tiff's complaint, you must find from a preponderance of the evi- dence that the authorities of said defendant county had been notified of such condition for a reasonable time prior to the hap- pening of said accident, or that such bridge had been so notori- ously unsafe as to amount to constructive notice to the authori- ties of said county; and by "reasonable time" is meant such length of time as would have allowed the repair of said bridge, or prevention of its use, by said county. That it is the duty of the county not only to construct its bridges in such manner as that they shall be safe, but to use ordinary care in keeping them in a safe condition for travelers and all persons passing over said bridge, by removing therefrom timbers which by use had be- come or may have become decayed and rotten, and thus render- ing the bridge unsafe and dangerous. That the law charges the county with the knowledge of the natural tendency of timber to decay, and places upon the county the duty of exercising or- dinary care to detect and guard against any decay or rotten- ness that might exist. That a failure to exercise such care upon the part of the county will render the county liable, al- though it may have no actual notice of the condition of the bridge. That it is not necessary, in order to charge the county with negligence in suffering the bridge in question to re- main out of repair, for the plaintiff to prove actual notice of it, but that such notice may be inferred if the defect in the bridge was of such a character, and had continued for such a length of time, as that the officers of the county charged with the supervision and repair of the bridges of the county might and probably would have discovered if they had used ordinary care in the discharge of their duties. That the county is liable in damages if it negligently suffered rotten and decayed timbers to remain in the bridge in question, thus rendering it unsafe and dangerous.* 35 S. E. 656. Personal injuries as instructions, see Eginoire v. Union result of defective bridges, see Com- County, 112 Iowa 558, 84 N. W. 758; ' stock V. Georgetown Tp., 137 Mich. Allen County Comrs. v. Bacon, 96 541, 100 N. W. 788. Ind. 31 ; Comstock v. Georgetown 'Robe V. Snohomish County, 35 Tp., 137 Mich. 541, 100 N. W. 788. Wash. 475, 11 Pac. 810. For similar CHAPTER XXIX. BROKERS AND FACTORS. Section Section 230. Real estate agents' contracts. 237. Compensation where subagent 231. Stock brokers' contracts. procures consummation of 232. Performance of contract by real transaction. estate agent. 238. Right to commissions where 233. Readiness and ability of pur- terms of sale changed. chaser to comply with contract. 239. Liability of one or more for 234. Duty to conduct sale after pur- commission. chaser found. 240. Evidence for consideration of 235. Compensation for broker's serv- jury. ices. 241. Real estate agents — Termination 236. Compensation where broker rep- of agency. resents both parties. 242. Factors and commission mer- chants. § 230. Real estate agents' contracts. — The court instructs the jury that if they beheve, from all the evidence, that at the time defendant placed the property in the hands of the plaintiff for sale, he agreed to take the sum of $5,000 for his property, and made no conditions as to taxes, and agreed to pay plaintiff all he might find a purchaser willing to pay over and above that sum, or might sell the same for, as his commission for finding a purchaser, or selling the same, and that the plaintiff afterward procured a purchaser in the person of (name of prospective purchaser) and was prevented from selling the same to ' (name of prospective purchaser) on account of the defendant's setting up a claim for taxes, and the case is otherwise made out, they should find for the plaintiff.^ 'It was objected that this instruc- tract to be in conformity with the tion did not require the prospective terms authorized. Tfie higher court purchaser to be a responsible person held the exceptions not well taken, and that it did not require the con- Fischer v. Bell, 91 Ind. 243. 252 253 BROKERS AND FACTORS. § 232 § 231. Stock-brokers' contracts. — The court instructs the jury that if they behave from the evidence that the defendant was employed as stock-broker by the plaintiff as alleged in the declaration, and that defendant in the course of such employment purchased stock on account of the plaintiff, and that the defend- ant advanced the sum stated in the declaration above the margin furnished by the plaintiff, and that the stocks were declining in the market, aiid that there was a deficiency, and if the jury be- lieve from the evidence that plaintiff failed to furnish the requi- site margins to make up the deficiency when called on by defend- ant, then defendant was warranted in selling the stock on due notice.^ § 232. Performance of contract by real estate agent. — (1) The court instructs the jury that if you believe that such former negotiations of H. with W. for the sale of said property had terminated without a sale being accomplished, and that defend- ant, with the knowledge of H., had taken the property in question off of the market, and that thereafter, on the day of , , defendant again listed the property with H. for sale within a limited time, and that during said limit H. failed to establish or renew negotiations with W. for the sale of the property, and that defendant, by his own efforts, acting independently of H., negotiated and consummated the sale to W., and that such sale was made after the expiration of the time to which H.'s agency was limited, then in such case, you will find for the defendant.' (2) The court instructs the jury that before plaintiff can re- cover a commission on account of the sale of the coal field in question, he must establish, by a preponderance of the evidence, that he produced, as a prospective purchaser, to the defendant the party that did purchase; that is, that it was through his efforts that T. and S. were brought together to enter upon nego- tiations as to the purchase and sale. Hence, if in , , T. and S. met and took up the consideration of the field in question, T. acting for the defendant in offering to sell, and S. acting for his company as a prospective purchaser, and if at that time T. " Stewart v. Drake, 46 N. Y. 449. ' Hardesty v. Cavin (Tex. Civ. App.), 149 S. W. 367. S 233 INSTRUCTIONS FORMS. 254 had no knowledge that the plaintiff had been in correspondence with S. concerning a coal field in county, and had no knowl- edge that plaintiff had called, or had been instrumental in calling, S.'s attention to a coal field for sale in county, and if at that time S. had no knowledge that the coal field he and the plaintiff had been corresponding about was the same coal field T. was offering for sale, then you must find that plaintiff did not bring T. and S. together, and was not the producing cause of the sale in question.* (3) The court instructs the jury that although they believe from the evidence that the plaintiff, W. B. S., found the pur- chaser for the S. farm acceptable to S., yet, if they further be- lieve from the evidence that at the time he did so consummate the sale the plaintiff was then in the employ of or acting for the defendant Company, then they will find for the defendant Company the sum of $ .° (4) The court instructs the jury that if they believe from the evidence that the plaintiff, W. B. S., found a purchaser for the farm of the defendant M. K. S. at a price accepted by her they should find for the plaintiff the sum of $ .® § 233. Readiness and ability of purchaser to comply with contract. — (1) The court instructs the jury that in order for the plaintiffs to recover in this case it is necessary for them to show by a preponderance or greater weight of the evidence that the said K. and D. were able, ready, and willing to carry out their contract of purchase made with defendants, and, in deter- mining the question as to whether said K. and D. are able, ready, and willing to carry out the said contract of purchase, you may take into consideration the fact that they have not paid off the said debts of the Company, required to be paid by their contract of purchase, along with all the other facts and circum- stances in the case, and, unless you find and believe from a pre- ponderance or greater weight of the evidence that said K. and D., at the time of the commencement of this suit, were able, * Seevers v. Cleveland Coal Co. ' Crawford - Chesterfield Co. v. (Iowa), 138 N. W. 793. Snook, 146 Ky. 248, 142 S. W. 385. " Crawford - Chesterfield Co. v. Snook, 146 Ky. 248, 142 S. W. 385. 255 BROKERS AND FACTORS. § 235 ready, and willing to comply with said contract of purchase, you should find for the defendants.' (2) The court instructs the jury that unless they find and be- lieve from the evidence in the case that the plaintiff, G. W. B., complied with all the requirements upon his part under the con- tract offered in evidence, signed by C. W., of date , , and that the said plaintiff did produce a purchaser ready, willing, and able to buy on the terms submitted in said contract, then your finding will be for the defendant.* § 234. Duty to conduct sale after purchaser found. — The court instructs the jury that it is only necessary, in order to re- cover in this case, for plaintiffs to have found or procured the purchaser for the brewery, after the same was placed in their hands for sale. It was not necessary for them to have conducted the sale; this may be done by the sellers themselves without the aid or presence of the plaintiffs, or any of them.* § 235. Compensation for broker's services. — (1) The court instructs the jury that it is admitted by the pleadings that at the time so alleged in the petition the plaintiffs, J. J. M. and H. V. R., were partners; and if you find from the evidence that it was agreed between the plaintiffs that plaintiff G. should have a por- tion of the compensation, and you should further find from the ■ evidence that the defendants K. and Z. employed the plaintiff J. J. M. to negotiate a sale of the brewery property for them, or to find a purchaser therefor, and agreed to pay him per cent, of whatever sum it sold for, and you should further find from the evidence that through the efforts or instrumentality of 'Morgan v. Keller, 194 Mo. 663, 92 Buck v. Hogeboom (Nebr.), 90 N. S. W. 75. See also Miller v. Early, W. 635; Miller v. Early, 22 Ky. L. 22 Ky. L. 825, 58 S. W. 789; Bruce 825, 58 S. W. 789. V. Wolfe, 102 Mo. 384, 76 S. W. 723 ; ' Morgan v. Keller, 194 Mo. 663, 92 Wheeler v. Buck, 23 Wash. 679, 63 S. W. 75. See also Bruce v. Wolfe, Pac. 566. 102 Mo. App. 384, 76 S. W. 723 ; Buck 'Bruce v. Wolfe, 102 Mo. App. 384, v. Hogeboom (Nebr.), 90 N. W. 635; 76 S. W. 723 (it was held that there Sample v. Rand, 112 Iowa 616, 84 N. was no good reason for the refusal of W. 683 ; Wheeler v. Buck, 23 Wash, this instruction). See Boyd v. Wat- 679, 63 Pac. 566. son, 101 Iowa 214, 70 N. W. 120; § 235 INSTRUCTIONS FORMS. 256 the plaintiffs, or either of them, they procured F. W. K., R. L. D. and C. A. D., or either of them, to whom the defendants K. and Z., and the other stockholders of the Company, sold their stock therein either for cash or on credit, or part cash and part credit, and part in stock in the Company, and in part to relieve the defendants K. and Z. of their liability on obligations for said Company, then you will find the issues in favor of the plaintiffs, and assess their damages at per cent, of the entire purchase-price paid, or to be paid, for said Company, and that without reference to' the fact that defendants did not receive, or were not to receive, all the purchase-price of said stock, but some part thereof was paid to other stockholders of said Company.^" (2) The court instructs the jury that in determining the pur- chase-price at which the property sold, if you find for the plain- tiffs, you are to ascertain from the evidence the cash paid by the purchasers to all of the stockholders of the Company, if any, together with the debts of every kind of said company, if any, either paid or assumed to be paid by the purchasers, and to that add the reasonable value of the capital stock in the Company taken or agreed to be taken by the defendants, if any, which value you are to find from the evidence, and on the total amount cast per cent, as the amount of your verdict. ^^ (3) The court instructs the jury that if they believe from the evidence that N. Z., defendant, placed or fixed the price with plaintiffs to be received for the property $ , and promised to pay per cent, commission if the sale was made, for said sum, the plaintiffs can not recover, and you should find for the defendants, unless you further find defendants varied or changed said price from that of the first negotiations with the plaintiffs." " Morgan v. Keller, 194 Mo. 663, 92 Sample v. Rand, 112 Iowa 616, 84 N. S. W. 75. For like instructions, see W. 683; Wheeler v. Buck, 23 Wash. Wheeler v. Buck, 23 Wash. 679, 63 679, 63 Pac. 566. Pac. 566; Miller v. Early, 22 Ky. L. "Morgan v. Keller, 194 Mo. 663, 825, 58 S. W. 789; Sample v. Rand, 92 S. W. 75. See also Carpenter v. 112 Iowa 616, 84 N. W. 683. Fisher, 175 Mass. 9, 55 N. E. 479; "Morgan v. Keller, 194 Mo. 663, Friar v. Smith, 120 Mich. 411, 79 92 S. W. 75. See also Miller v. N. W. 633, 46 L. R. A. 229; Robert- Early, 22 Ky. L. 825, 58 S. W. 789; son v. Vasey, 125 Iowa 526, 101 N. 257 BROKERS AND FACTORS. § 235 (4) The court instructs the jury that if you find from the evidence that the defendants employed the plaintiffs to sell for them the Company property, and agreed to pay them per cent, on whatever sum it sold for, and the plaintiffs pro- cured F. W. K. and other parties to whom said property was sold, either direct or by transfer of the capital stock of the stock- holders of said company, then you should find the issues in favor of the plaintiffs, and assess their damages at per cent, of whatever sum said stock was sold for together with per cent, interest thereon from the time the demand was made, if any demand was made, and if not, then from the time of the institu- tion of this suit.^^ (5) The court instructs the jury that if they find, from a fair preponderance of the evidence, that the defendant C. W. R. em- ployed the plaintiff, S., to sell the property in question, without naming J. C. H. as a probable purchaser, and that, in pursuance of such employment, S. went to H., and got an offer of $ , which he submitted to said C. W. R., and that afterward the de- fendant conveyed the property to H. for $ , then, if you so find, your verdict should be for the plaintiff for the customary compensation for making such sales, as shown by the evidence.^' (6) The court instructs the jury that if, on the other hand, you should find at the time of the sale the defendants or J. J. W. had no notice or knowledge that the said J. & A. were purchasers furnished or procured by the plaintiffs, and you should further find that no contract was entered into between the parties by which it was agreed that the plaintiffs should have per cent, commission of the amount of all the sales made by the de- fendants to parties from , county, , then your verdict should be for the defendants, without regard whether said sale was influenced by the said L. E. B. or not.^° W. 271; Boyd v. Watson, 101 Iowa "Sample v. Rand, 112 Iowa 616, 214, 70 N. W. 120; Sample v. Rand, 84 N. W. 683. For value of real 112 Iowa 616, 84 N. W. 683. estate broker's services, see Miller v. "Morgan v. Keller, 194 Mo. 663, Early, 22 Ky. L. 825, 58 S. W. 789; 92 S. W. 75. See also Miller v. Morgan v. Keller, 194 Mo. 663, 92 Early, 22 Ky. L. 825, 58 S. W. 789; S. W. 75; Wheeler v. Buck, 23 Wheeler v. Buck, 23 Wash. 679, 63 Wash. 679, 63 Pac. 566. Pac. 566. "Boyd v. Watson, 101 Iowa 214, 17— Branson's Inst. § 235 INSTRUCTIONS FORMS. 258 (7) The court instructs the jury that where the owner of real estate has Hsted his property with more than one real estate agent, and one of the real estate agents with whom such prop- erty is listed attempts to interest a certain person in said property by endeavoring to effect a sale to such person, but does not suc- ceed in inducing said person to negotiate with the owner for the purchase of the property or to make an offer for said property, and thereafter another real estate agent, with whom the property has been listed, by his efforts succeeds in interesting the same person in the purchase of the same property and by his efforts effects a sale of said property to such person, then the agent who succeeds in bringing about the sale is entitled to the commis- sion.^® (8) The court instructs the jury that if you believe from the evidence that plaintiff was employed by the defendant to sell the property described in the declaration and that the plaintiff pro- cured a purchaser on the terms proposed by the defendant and that the plaintiff attempted to induce defendant to take less than the price which was offered by the prospective purchaser, then plaintiff is not entitled to compensation.^' (9) The court instructs the jury that if they believe, from the evidence, that Mr. D., as the representative, broker or agent of the defendant, opened negotiations with Mr. L. J. M., for the sale to him of the property in question, with the knowledge and permission of the defendant, and that the plaintiffs, being ad- vised of Mr. D.'s employment and action, afterward, having au- thority from the defendant to find a purchaser for the same property, endeavored to make a sale thereof to said L. J. M., but were not instrumental in so doing, then the plaintiffs are not en- titled to compensation for their services in endeavoring to make said sale, even though the jury may further believe, from the evidence, that the defendant, through the instrumentality of Mr. D., acting independently of said plaintiffs, afterward suc- 70 N. W. 120. See Carpenter v. 870, 92 Pac. 1120, 14 L. R. A. (N. S.) Fisher, 175 Mass. 9, SS N. E. 479 ; 775, 123 Am. St. *172. Bruce v. Wolfe, 102 Mo. App. 384, 76 " Martin v. Bliss, 57 Hun (N. Y.) S. W. 723. 157. "Votaw V. McKeever, 76 Kans. 259 BROKERS AND FACTORS. § 236 ceeded in selling said property to said L. J. M. One claiming commission for the sale of real estate can not rightfully claim the benefit of introducing to the defendant a purchaser for his property who had already been introduced to him as such by an- other party, with and through whom negotiations were already in progress and were continued to a consummation of the sale.^* § 236. Compensation where broker represents both par- ties. — The court instructs the jury that there has been con- siderable said in your presence about agency. Now, under the defendant's theory of this case, the claim is that the contract, if one was made between the parties, was one of agency, and not, as the plaintififs claim, one that would constitute them middle- men. The law does not recognize the liability of either party to such an agency as defendant claims was the case. A man can not act for the best interests of his principal in that manner; that is, as the agent of both parties, where he or the agent has to do the work, — effect the exchange. Therefore, the law holds it is against public policy to permit a recovery by an agent for a compensation for making an exchange of property from either the grantor or the grantee, unless such party from whom he seeks to collect had full knowledge of such double agency at the time he employed the agent. The rule of law on this subject is the same to-day as it was in Jerusalem two thousand years ago. A man can not serve two masters at the same time, especially where their interests are diametrically opposed; and if you find that the contract that was made was one of agency, instead of that of middlemen, — that the plaintiffs were to make the trade, instead of the parties, — then plaintiffs are not entitled to recover. Now, the plaintiffs' claim in this case is that they did not agree to do anything for the defendant ; but they allege that the defend- ant agreed that, if they did do certain things, — that is, bring to the defendant a man with whom he could trade his property for a farm, — then, in that event, the defendant would pay the plain- tiffs a commission therefor. This distinction of the claims of these two parties is well defined, and it is for you to determine "Fessenden v. Doane, 188 III. 228, 58 N. E. 974. § 237 INSTRUCTIONS FORMS. 260 which theory is true; that is, whether or not the defendant agreed to pay the plaintiffs for bringing to him a man with whom he could trade, they to do nothing in the matter, or whether or not the defendant agreed that they (the plaintiffs) should make the deal, as they term it, — the trade or exchange, — in which event they would be his agents, instead of middlemen, doing nothing between them. I want you to understand that dis- tinction. That is the distinction in this case. Which is true? If it is as the plaintiffs claim, then they are entitled to recover. If it is not as they claim, — if the contract was not made as they claim, — then they are not entitled to recover. If the alleged agreement had been that the plaintiffs agreed with the defendant that they would take his property, and do the best they could to find a purchaser for it by way of sale or exchange, and actually did find H., and negotiate the exchange with him, — make the trade, or deal, as they term it, — then that would have constituted an agency, an agreement to do something; and if they were to receive a commission from H. as well as from S., then in that event the law would not allow them to collect from either S. or H., unless the party sued had full knowledge of such double agency prior to the sale or exchange.^' § 237. Compensation where subagent procures consum- mation of transaction. — (1) The court instructs the jury that under the undisputed evidence in this case, L. E. B. was the assist- ant or subagent of B. & W. for the purpose of negotiating a sale of the land described in the petition to A. & J., and it is claimed by the plaintiffs that said sale was consummated partially through the efforts and procurement of the said B. Now, if you are satisfied from the evidence that the sale of the G. farm was finally made to A. & J., and that at the time, or prior to the said sale, J. J. W., or any of the individual members of the said firm, knew that A. & J. were customers furnished and procured by B. & W., then the plaintiffs are entitled to recover a verdict at your hands.^* '"Friar v. Smith, 120 Mich. 411, App. 384, 76 S. W. 723; Buck v. 79 N. W. 633, 46 L. R. A. 229. See Hogeboom (Nebr.), 90 N. W. 63S. Boyd V. Watson, 101 Iowa 214, 70 N. " Boyd v. Watson, 101 Iowa 214, W. 120; Bruce v. Wolfe, 102 Mo. 70 N. W. 120. See Carpenter v. 26l BROKERS AND FACTORS. § 238 (2) The court instructs the jury that it is claimed by the plaintiffs, and evidence has been introduced by them to the effect, that one L. E. B. was their subagent or assistant in pro- curing A. & J. as purchasers for the lands held for sale by the de- fendants. In regard to the acts done by the said B., if you find that any were done by him, inducing said A. & J. to purchase the lands in controversy, you are told that the defendants would not be bound thereby, unless you further find that the said de- fendants, or some of the individual members of the said partner- ship, had knowledge and notice of the fact that the said A. & J. were customers for the land described in the plaintiff's petition, procured, induced, or furnished by the firm of B. & W.^^ § 238. Right to commissions where terms of sale changed. — (i) The court instructs the jury that, although you beheve from the evidence that plaintiffs were not to sell the property for less than $ , yet if you further find from the evidence that defendants voluntarily reduced the price or changed the terms in their sale to K. and others, still the plaintiffs are en- titled to recover, provided you find for them under the evidence and other instructions in the case.^^ (2) The court instructs the jury that if you believe from the evidence that the defendants placed the property in question in the hands of plaintiffs for sale, and that plaintiffs, or either of them, brought about the sale by introducing the purchasers, whereby a sale was perfected with defendants, then, and in that case, plaintiffs would be entitled to their commission agreed upon, even though you may believe that the defendants sold said prop- erty to said purchasers at a less price than amount at which plain- tiffs were to offer said property.^^ Fisher, 175 Mass. 9, 55 N. E. 479; ==" Morgan v. Keller, 194 Mo. 663, Buck V. Hogeboom (Nebr.), 90 N. 92 S. W. 75. Brokers, see Bruce v. W. 635; Bruce v. Wolfe, 102 Mo. Wolfe, 102 Mo. 384, 76 S. W. 723; App. 384, 76 S. W. 723. Buck v. Hogeboom (Nebr.), 90 N. "Boyd V. Watson, 101 Iowa 214, W. 635; Sample v. Rand, 112 Iowa 70 N. W. 120. See Buck v. Hoge- 616, 84 N. W. 683 ; Wheeler v. Buck, boom (Nebr.), 90 N. W. 635; Bruce 23 Wash. 679, 63 Pac. 566. V. Wolfe, 102 Mo. App. 384, 76 S. "Morgan v. Keller, 194 Mo. 663, W. 723; Miller v. Early, 22 Ky. L. 92 S. W. 75. Broker's services, see 825, 58 S. W. 789. Boyd v. Watson, 101 Iowa 214, 70 § 239 INSTRUCTIONS FORMS. 262 § 239. Liability of one or more for commission. — The court instructs the jury that you can find the issues against both or either of the defendants, if warranted by the evidence. But if you find from the evidence that either of the defendants did not employ the plaintiffs to sell the property, and you should further find from the evidence that one of the defendants did employ them, and agreed to pay them per cent, for their services on vs^hatever sum the property sold for to the purchaser found by them, then you should find the full amount of per cent, of the purchase-price against the defendant or defend- ants so employing the plaintiffs, regardless of the particular amount or proportion of the purchase-money received by such defendant or defendants.^* § 240. Evidence for consideration of jury. — The court in- structs the jury that there has been some evidence in the case relative to the previous dealings between the broker and this de- fendant. That is competent evidence, and it has been admitted, at any rate, in this case as competent evidence, as having some bearing upon what was the business relation between this plain- tiff and this defendant. It has no tendency to prove the actual facts that are involved in this case, but it has a tendency to show what the business dealings were between the parties and what may, perhaps, have been in their minds in making any agreement that was made and which is involved in this case.^° § 241. Real estate agents — Termination of agency. — ^The court instructs the jury that if you believe from the evidence that the plaintiff told defendant that he (plaintiff) couldn't sell the place, or that in substance, and the defendant understood from such conversation that plaintiff had abandoned the agency, and plaintiff did not, with defendant's knowledge, make further efforts to sell said premises, then said agency would be ter- minated.''" N. W. 120; Bruce v. Wolfe, 102 Mo. 214, 70 N. W. 120; Wheeler v. Buck, App. 384, 76 S. W. 723 ; Sample v. 23 Wash. 679, 63 Pac. 566. Rand, 112 Iowa 616, 84 N. W. 683. "'Bartow v. Parsons Pulp &c. Co., " Morgan v. Keller, 194 Mo. 663, 208 Mass. 232, 94 N. E. 312. 92 S. W. 75. Broker's services, see ''° McFarland v. Boucher, 153 Iowa Buck V. Hogeboom (Nebr.). 90 N. 716, 134 N. W. 91. W. 635; Boyd v. Watson, 101 Iowa 263 ■ BROKERS AND FACTORS. § 242 § 242. Factors and commission merchants. — (1) The court instructs the jury that if a patron directs his factor to sell cot- ton, for instance, at a certain time, and the factor fails to do it, he can hold the factor to the amount of the value of the cotton at the time he directed it to be sold. If the factor sells without direction and consent of the patron, — just does it of his own ac- count, — then the patron can hold him liable for the value of that cotton, — the highest price for it any time up to the date of de- mand for it, — if he sees fit.^^ (2) The court instructs the jury that where a factor under- takes to buy cotton from himself belonging to his principal, then the man who sends the cotton there has the right to elect whether he will stand by the sale, which is improper, or whether he will demand the value of the goods."' (3) The court instructs the jury that it is not very material whether F. went there and actually had this bill of lading signed, or some other person. It is a question for you to determine what this transaction actually was — whether the shipment was one made in the name of H. to cover up and conceal the fact that T. was actually the owner and entitled to the proceeds of this grain, or whether in fact H. was the owner."* (4) The court instructs the jury that with reference to the burden of proof, it rests in this' case upon the plaintiff to show that this grain was shipped by him, or by some one on his be- half. The grain was shipped in his name, and was received and reported upon by the defendant as H.'s grain. And if there was any fraud in this transaction, the burden of proof is upon the defendant, who has alleged it, to show it.^° " Sims V. Miller, ZJ S. Car. 402, '" Holden v. Maxfield, 94 Minn. 27, 16 S. E. ISS, 34 Am; St. 762. 101 N. W. 9SS. "" Sims V. Miller, 57 S. Car. 402, " Holden v. Maxfield, 94 Minn. 27, 16 S. E. ISS, 34 Am. St. 762. 101 N. W. 9SS. CHAPTER XXX. BUILDING CONTRACTS. Section Section 243. Changes in plans and specifica- 249. Abandonment of work — Recov- tions — Acceptance of labor ery for part performance, and materials. 2S0. Cancelation of contract. 244. Compliance with contract. 251. Rescission — Fraud or mistake — 245. Architect's acceptance — Failure Burden of proof. or refusal to deliver certificate. 252. Liability where owner makes 246. Bad faith on part of architect— performance impossible. Abandonment — Rescission. 253. Allowance of interest for delay 247. Abandonment of work — Enlarge- in payment. ment of contract with archi- 254. Damages for defective construc- tect. tion. 248. Liability for additional labor and material. § 243. Changes in plans and specifications — Acceptance of labor and materials. — (1) The court instructs the jury that if they believe, from the evidence, that the plans for a founda- tion, adopted by the commissioners on the day of , in the year , were so different from the old plans as to pro- vide for a new and materially different job, piece of work and foundation, and not a mere change, addition or alteration of the foundation provided for by the old plan, and that such adoption of the plans was without the consent of plaintiff, then the original contract was no longer binding upon the plaintiff and he would be entitled to be' paid according to measurement and value for such work and materials, if any, as the evidence shows was furnished to defendant and accepted by said board of commis- sioners, with full knowledge on their part — if the jury so find, from the evidence, that the same was furnished upon an implied contract to pay for the same, not under the contract read in evidence.^ 'Cook County v. Harms, 108 111. 150. 264 265 BUILDING CONTRACTS. § 24$ (2) The court instructs the jury that one of the provisions of said contract was to the effect that the plans and specifications should be prepared and furnished within sixty days, but it ap- pears from the evidence that there were subsequent changes and modifications of the original sketch and design. You are there- fore instructed that strict compliance within a specified time was thereby waived, and plaintiff would have a reasonable time to prepare and furnish such plans and specifications after the last of such changes and modifications had been agreed to.^ § 244. Compliance with contract. — The court instructs the jury that the plaintiff on his part claims that he has fully complied with said contract as to all provisions therein, except such provisions as he claims to have been waived, as hereinafter referred to, and if you so find, your verdict should* be for the plaintiff, while, on the other hand, if you find that plaintiff has failed to comply with the provisions, not waived as hereafter explained, then your verdict should be for the defendant.^ § 245. Architect's acceptance — Failure or refusal to de- liver certificate. — (1) The court instructs the jury that if you believe from the evidence that the architect, C. J. W., in this case inspected the work in question and knew its character and quality, and that said architect accepted the work done and ma- terials furnished by the plaintiffs as being in compliance with and in full performance of the contract on plaintiffs' part, and if you further believe from the evidence and under the instruc- tions of the court that said contract was completed in accordance therewith, and you further believe from the evidence that said architect in bad faith and without just cause refused to deliver to the plaintiffs a final certificate, showing such acceptance and completion and the balance due the plaintiffs, if any, then the plaintiffs are entitled to recover' whatever, if anything, the jury shall find from the evidence is due upon the contract.* (2) The court instructs the jury that if you believe from the 'Bowell V. Draper, 149 Iowa 72S, ^Fitzgerald v. Benner, 219 111. 48S, 129 N. W. 54. 76 .N. E. 709. 'Bowell V. Draper, 149 Iowa 725, 129 N. W. 54. § 245 INSTRUCTIONS FORMS. 266 evidence and the instructions of the court that the architect or superintendent named in the contract in this case accepted the work performed by the plaintiffs as the work progressed, as re- quired by the contract, and if you further find from the evidence that such contract was completed in accordance with the terms thereof, and you further believe from the evidence that, after the contract was completed, the architect accepted the work per- formed by the plaintiffs, and if you further believe from the evidence and instructions of the court that the architect with- held or refused to deliver to the plaintiffs his statement or cer- tificate in writing, showing the amount due the plaintiffs, if any- thing, either because the defendant, the owner, directed him, the said architect, to withhold or not to deliver the same, or for any other reason not in accordance with the terms of the contract between said parties, if shown by all the evidence in this case, then you are instructed, if you find such facts proven from the evidence, that the plaintiffs would not be bound to produce such certificates before they were entitled to recover in this case.® (3) The court instructs the jury that if they believe from the evidence that plaintiff entered into a contract with the de- fendant' for the construction of the building described in the complaint, payment to be made by the defendant to the com- plainant upon production of a certificate of performance by the architect, and if the jury believe from the evidence that plaintiff applied to the architect for the certificate of perform- ance in accordance with the contract and that the architect re- fused to give it, not on the ground of non-performance by the plaintiff, but because defendant had told the architect not to give the certificates, and if the jury believe from the evidence that plaintiff had fulfilled his agreement, then the plaintiff can recover notwithstanding the refusal or failure of the architect to deliver the certificates, if they find that the architect did refuse or fail to give the certificates." " The fact that this instruction did of excuse for the nonproduction of not enumerate all the elements essen- the architect's certificate." Fitzgerald tial to a recovery was held not to v. Benner, 219 111. 485, 76 N. E. 709. make it objectionable, as the instruc- "Anderson v. Meislahn, 12 Daly tion "simply relates to the question (N. Y.) 149. 267 BUILDING CONTRACTS. § 247 § 246. Bad faith on part of architect — Abandonment — Re- scission. — The court instructs the jury that even though they should beheve, from all the evidence in the case, that the written contract between plaintiff and defendant, offered in evidence, was not abandoned or rescinded by the defendant, and that the architect, E., had the right to fix and determine the value of any work and materials furnished by the plaintiff, and not included in the original contract, plans and specifications, yet if the jury further believe, from the evidence, that in exercising such right the architect acted fraudulently and in bad faith, then such act would not be binding upon plaintiff.'' § 247. Abandonment of work — Enlargement of contract with architect. — The court instructs the jury that if they be- lieve, from the evidence, that the building represented by the first drawings offered in evidence was never erected and that the work on the building under said first drawings was abandoned, and that the defendant directed and engaged the plaintiff to draw other and different plans, specifications and details for a building larger than represented by the first plans, and that the plaintiff, in accordance with such direction and engagement, did draw other and different plans, specifications and details not contemplated in the written contract, and that no price or sum was mentioned as compensation to which plaintiff should be entitled, then you are instructed that the plaintiff would be entitled to the custo- mary, usual and reasonable fees charged by architects in this community for such work.* 'Cook County v. Harms, 108 111. This criticism has no merit. There ISO. were two sets of drawings in evi- '"One objection pointed out by ap- dence and they were referred to pellants in their brief to this instruc- throughout the trial as the first and tion," says the Supreme Court of the second plans, so as to distinguish Illinois, "is that the first clause of them. The first set of drawings was the instruction, which refers to the not completed at the time the deter- first drawings offered in evidence,' mination to erect a different building was equivalent to 'a direction by the was reached. The language employed court to the jury that the so-called in the instruction to which this objec- first plans were completed, and that tion goes does not tell the jury that they fully represented all the archi- the plans were complete, nor is such tect was to do concerning the building an inference to be drawn from the contemplated in the written contract.' reference to them as the 'first draw- § 248 INSTRUCTIONS FORMS. 268 § 248. Liability for additional labor and material. — The court instructs the jury that if they beHeve, from the evidence in this case, that in addition to the requirements of the plans and specifications the plaintiff placed in the building certain things (specified in the instruction), then you are instructed that the plaintiff is entitled to recover from the defendants such addi- tional sum as you may believe, from all the evidence in this case, to be due to the plaintiff because of the additional work, labor and material in so constructing, building and furnishing said extra articles in said building according as the proof shows the agreement was relative thereto, if any." § 249. Abandonment of Vv^ork — Recovery for part perform- ance. — The court instructs the jury that if they believe from the evidence that plaintiff wilfully abandoned the work sued for in this case, leaving the house which he contracted with de- fendant to build not finished according to the contract, then plaintiff can not recover in this action. But if a party in good faith proceeds under a special contract, doing what he reasonably supposes is required and substantially completes it and the other party accepts the benefit of the work, although the contractor may not have done all that was really' his duty or in the exact manner required, still the contractor may maintain an action to recover the value of his labor and materials, but he will not nec- essarily recover the cost of his materials or the ordinary price of the labor. The party for whom the work is done is entitled to have deducted from the contract price the difference between ings offered in evidence.' The word from the evidence, that if certain 'drawings' means a representation of vault doors and other specified things objects made with a point, such as a were placed in the building in addi- pen, pencil or crayon, and may be tion to the requirements of the plans, applied to an incomplete sketch as then plaintiff was entitled to recover well as to finished plans. This ob- such additional sums as they might jection is hypercritical." Atchison v. find, from all the evidence in the McKinnie, 233 111. 106, 84 N. E. 208. case, to be due plaintiff on account See also Watson v. Dewitt County, of the additional work, according as 19 Tex. Civ. App. ISO, 46 S. W. 1061 the evidence shows the contract was (forfeiture on default). relative thereto, if any. The instruc- °"The instruction," says the Su- tion does not assume that articles preme Court of Illinois, "merely di- were furnished or labor was per- rected the jury that if they found, formed, but these facts must be 269 BUILDING CONTRACTS. § 252 the value of the work as done and its value, if it had been done in accordance with the contract/" § 250. Cancelation of contract. — The court instructs the jury that even though they may believe, from the evidence, that the contract between plaintiff and defendant, offered in evidence, was not canceled by defendant, and that any work and materials furnished by plaintiff were extra under such contract, and that the architect had authority to fix and determine the value of such extra work and material, still he could only exercise such right and authority in the manner provided by said contract.^^ § 251. Rescission — Fraud or mistake — Burden of proof. — The court instructs the jury that if they believe, from the evi- dence, that the contract entered into on the day of , in the year , was not rescinded and by its terms any changes, additions or alterations, if any such should be ordered, should not invalidate oi; impair the contract, but should be paid for as extra work, or deducted from the original amount of the contract, as the case might be, such extras or deductions, if any, to be sub- ject to the valuation of the architect, whose decisions and valua- tions of them should be final and binding upon both parties to the contract, and that said E. did submit his estimates of the value of them in the manner provided by and in conformity with said contract, then the parties to said contract are bound by its findings, unless the same be fraudulent or mistaken, the burden of proving which rests upon the plaintiff.^^ § 252. Liability where owner makes performance impos- sible. — The court instructs the jury that if they believe, from the evidence, that the defendant made with the plaintiff the agreement in either count of plaintiff's declaration alleged and before the time for execution of the same on his part, by his own found from the evidence and as to '"Cunningham v. Washburn, 119 the amount to be recovered, that Mass. 224. was required to be determined from "Cook County v. Harms, 108 111. all the evidence in the case." Mueller 151. V. Rosen, 179 111. 130, S3 N. E. 625. "Cook County v. Harms, 108 111. See also Brown v. Langner, 25 Ind. 151. App. 538, 58 N. E. 743 (extra work). § 253 INSTRUCTIONS FORMS. 2,'JO act put it out of his power to perform said agreement, then he is liable to the plaintiff in this suit for such damages as the plain- tiff sustained by any failure on the part of defendant to per- form ; and, in such case, it was unnecessary for plaintiff to make demand, or do any other act to fix the defendant's liability.^^ § 253. Allowance of interest for delay in payment. — The court instructs the jury that if you find from the evidence and under the instructions of the court that the plaintiffs are entitled to recover from the defendant, and if you find from the evi- dence that such money as you find the plaintiffs are entitled to, if any, was withheld by an unreasonable and vexatious delay of payment, then you may allow the plaintiffs interest at the rate of five per cent, per annum on such sum, if any, as you believe from the evidence and under the instructions of the court, the plaintiffs are entitled to recover from the defendant from the date the same became payable, as may be shown by the evi- dence in the case; what the facts are you must determine from the evidence.^* § 254. Damages for defective construction. — The court in- structs the jury that if they believe from the evidence in this case that the iron front, or some part thereof, furnished by the defendant to the plaintiff under the contract between the plaintiff and the defendant, was defective, or that the material or some part thereof in said front was defective, and that by reason of either being defective the plaintiff's building was caused to fall down, then the law is for the plaintiff, and you will find for it such sum in damages as you may believe from the evidence it sustained by reason of the falling down of said build- ing, not exceeding, however, the sum claimed in the petition, to wit, $ ." '= White V. Thomas, 39 111. 227. '"Fraternal Const. Co. v. Jackson " Fitzgerald v. Benner, 219 111. 485, Foundry &c. Co., 28 Ky. L. 383, 89 76 N. E. 709. S. W. 265. CHAPTER XXXI. CARRIERS OF GOODS AND ANIMALS. Section Section 255. Duty to provide adequate supply 261. Delay in transportation caused of cars. by a snow blockade. 256. Duty to furnish safe cars for 262. Bills of lading — Presumption transportation of cattle. from possession. 257. Ownership as between con- 263. Bills of lading — Acceptance of signor and consignee. car. 258. Failure to take proper care of 264. Bills of lading — Estoppel to deny livestock in course of trans- receipt of car. portation — Burden of proof. 265. Bills of lading — Vessel's lien on 259. Duty to furnish safe and suf- cargo. ficient stock pens. 266. Liability of connecting carriers. 260. Loss of shipment through act of 267. Lost baggage — Burden of proof. God — Burden of proof. , § 255. Duty to provide adequate supply of cars. — (1) The court instructs the jury that it was the duty of defendant at the times complained of to provide and maintain reasonably adequate and sufficient facilities — that is cars — for the transportation of all coal which might ordinarily be expected to seek transporta- tion along its line of road, including plaintiff's coal in question ; and that it was also the duty of defendant to use reasonable care and diligence to furnish cars to plaintiff at its mine when re- quested or demanded by it for the transportation of the coal then being mined and shipped by plaintiff over defendant's road but defendant was entitled to be given reasonable notice by plain- tiff prior to the time or times said cars were needed to be fur- nished for the transportation of plaintiff's coal at the time or times in question. So if you shall believe from the evidence that plaintiff at the time or either one or more of them, in the month of , , as complained of and mentioned in evidence, re- quested or demanded of defendant or its authorized agent to fur- nish and place at its mine any car or cars in which to load and 271 § 255 INSTRUCTIONS FORMS. 272 transport plaintiff's coal, then being mined, if it was, and shall fur- ther believe from the evidence that defendant failed or refused to furnish and place said car or cars at said mine at said time or times when needed, although defendant had reasonable time in which to do so, if it did, after notice was given it or its said agent, if any was given, that said car or cars were so needed, and if you shall further believe from the evidence that such failure or re- fusal, if any, was due to inadequate or insufficient supply of cars provided and maintained by the defendant for transportation of such coal as might have been reasonably expected to seek trans- portation over its line as above required, or if it was due and occasioned by reason of the failure, if any, of defendant's em- ploye or employes in charge thereof to use reasonable care and diligence to furnish and place said cars at the time or times needed and demanded upon reasonable notice, if any, as above required, and if by reason and on account of either of such fail- ure, if any there was, plaintiff was unable to run its mine or transport its coal, and thereby sustained a loss in its profits, or was compelled to and did expend money in maintaining its plant while idle, if any, then in that event you should find for the plaintiff and award to it such an amount or amounts as will fairly and reasonably compensate for such loss, if any, so sus- tained and which was the direct and proximate result thereof, the measure of recovery being the reasonable difference, if any, in what it actually cost plaintiff to mine and place said coal on the market, and what it could have reasonably sold it for, on such coal as plaintiff could have reasonably mined and sold at said time or times, and also the actual expenses incurred in wages paid out and for the reasonable cost of the fuel used to main- tain said plant by plaintiff at said time or times while so remain- ing idle, if any, on account thereof, not exceeding upon the whole the sum of $ , but, unless you should so find and believe from the evidence as above required, you must find for the defendant.'' (2) The court instructs the jury that defendant was not required to anticipate an abnormal demand for cars, or an unprecedented and unexpected press of business and to keep cars ' Illinois Cent. R. Co. v. River &c. Coke Co., 150 Ky. 489, ISO S, W. 641, 44 L. R. A. (N. S.) 643. 273 CARRIERS OF GOODS AND ANIMALS. § 257 to meet such contingency, so if you shall believe from the evi- dence that defendant provided and maintained at the times in question a reasonably adequate or sufficient number of cars for the handling and transportation of coal which might have been reasonably expected to seek transportation along its lines, in- cluding plaintiff, and if you shall also believe from the evi- dence that defendant or its agents in charge thereof used rea- sonable care and diligence to furnish cars to plaintiff, and did, without preference or discrimination, furnish same to plaintiff, if it did so, at its mine after being notified a reasonable time be- fore the said time or times that such cars would be needed at .said time or times, if it was, then in that event you should find for the defendant.'' § 256. Duty to furnish safe cars for transportation of cattle. — The court instructs the jury that if they believe from the evidence that the defendant failed to exercise reasonable care to furnish plaintiffs with a car safe and suitable for the transportation of their stock from L. to S. B., and that by reason of such failure a car was furnished which was unsuitable or un- safe for the transportation of said stock from L. to S. B., and that by reason of the unsafe or unsuitable condition of said car it was detained at C. for repairs, and that by reason of said de- tention or by reason of any delays on the route resulting from said detention at C. plaintiffs' stock was unreasonably delayed in their transportation from L. to S. B., the jury should find for the plaintiffs.^ § 257. Ownership as between consignor and consignee. — The court instructs the jury that the presumption is that the goods belonged to the people at the time to whom they were shipped and that the consignee is the owner, in the absence of any- thing else to the contrary.* 'Illinois Cent. R. Co. v. River &c. was the consignee's. The bill of Coke Co., 150 Ky. 489, ISO S. W. 641, lading issued so declared and the pre- 44^L. R. A. (N. S.) 643. sumption naturally follows such bill 'Adams Express Co. v. Hundley, of lading." Sandford v. Seaboard 145_Ky. 7, 139 S. W. 1084. Air Line R. Co., 79 S. Car. 519, 61 S. * "This was a presumption that the E. 74. ownership of the goods at the time 18 — Branson's Inst. § 258 INSTRUCTIONS FORMS. 274 § 258. Failure to take proper care of livestock in course of transportation — Burden of proof. — (1) The court instructs tlie jury that if you believe from the evidence in this case that the cattle shipped by plaintiffs were delayed for an unreasonable time in the pens of defendant at , and that any of the cars transporting same were not bedded or were improperly bedded, and that said cars or any of them were in bad repair, and that defendant failed to exercise ordinary care in transporting and handling the cattle while in transit, and that such acts, or either of them, if any, was occasioned by negligence, as herein defined, and as the direct and proximate cause of such acts or either of them, head of cattle was killed or died in transit, and other head afterwards died, then you are instructed to find for the plaintiffs the reasonable market value of the cattle so dead or died, at the time at , / (2) The court instructs the jury that if you find that the train was at any time left standing while en route, and the cattle in- jured themselves by fighting and moving about, then, in order for plaintiffs to recover for injuries sustained by the cattle by fighting and moving about while the train was- standing, it de- volves upon the plaintiffs to show that the train was standing an unusual length of time, and that the train was standing by rea- son of the negligence of the defendant or its agents, and that the cattle would not have been so injured but for such negligence, and that the acts of the cattle were such as are the ordinary acts of cattle under the same circumstances, and that the defendant and its agents knew of such actions of cattle, or could have known by ordinary care and diligence; and, if you fail to so find in this case, the plaintiffs can not recover for injuries re- ceived by the cattle in fighting and moving about.® § 259. Duty to furnish safe and sufficient stock pens. — (i) The court instructs the jury that it was the duty of defend- ant company to maintain about its stock pens at L., Ky., such fence as in the judgment of ordinarily careful and prudent per- sons would safely and securely hold and confine such stock as ' Gulf &c. R. Co. V. Brock (Tex. 23 Ky. L. 2128, 66 S. W. 714 (care of Civ. App.), ISO S. W. 488. live stock) ; Comer v. Columbia &c. » Texas &c. R. Co. v. Fambrough R. Co., 52 S. Car. 36, 29 S. E. 637 (Tex. Civ. App.), 55 S. W. 188. See (facilities for unloading and feed- also Louisville &c. R. Co. v. Wathen, i"g). 275 CARRIERS OF GOODS AND ANIMALS. § 26 1 might be placed there for loading upon its cars for shipment, and if you shall believe from the evidence that defendant company ne'gligently failed to have and maintain such fence about said pens, and that by reason of such failure plaintiff's three horses escaped therefrom and were injured, you should find for plaintiff and award him in damages the difference between the fair market value of said horses delivered at A., Ga., in the condi- tion they were in when first placed in said pens at L., Ky., and their condition after they were injured by escaping therefrom, not exceeding $ J (2 ) The court instructs the jury that if they believe from the evidence that the stock pen in which plaintiff's stock were con- fined at the time complained of was in a reasonably safe condition — that is, such as a reasonably prudent person would believe sufficient to confine stock under usual and ordinary conditions there — they should find for defendant.* (3) The court instructs the jury that it was the duty of the railway company to furnish sufficient stock pens at , , to load such lots of cattle as were ordinarily tendered at that point for shipment.* § 260. Loss of shipment through act of God — Burden of proof. — The court instructs the jury that the burden is upon the defendant to establish by evidence that the loss or damage in question was caused by an act of God, and if the jury so find, then unless the plaintiff has satisfied you by his evidence that the defendant has been guilty of negligence entering into and co- operating with the act of God in producing such loss, you will find for the defendant." § 261. Delay in transportation caused by a snow blockade. — The court instructs the jury that if you find from the evidence that an obstruction of the defendant's road by a snow blockade or otherwise existed at any point at the time these sheep were loaded, which would interfere with the prompt and safe canying 'Louisville &c. R. Co. v. Thonip- "Texas &c. R. Co. v. Fambrough son, 144 Ky. 765, 139 S. W. 939. (Tex. Civ. App.), 55 S. W. 188. ' Louisville &c. R. Co. v. Thomp- '° !\Iemphis &c. R. Co. v. Reeves, 10 son, 144 Ky. 765, 139 S. W. 939. Wall. (U. S.) 189, 19 L. ed. 913. § 262 INSTRUCTIONS FORMS. 276 and delivery of these sheep, and which was known to the de- fendant, and the sheep were accepted by the defendant for ship- ment without informing the plaintiff of the state of affairs,*the defendant can not offer the obstruction as an excuse for failure to deliver promptly, even though the obstruction was the act of God. Having undertaken to take the shipment with full knowl- edge of the facts, its liability as a common carrier attached. It was bound to take notice of the signs of approaching danger if any were known to it, and, if the danger was of such a character as reasonably to awaken apprehension at a time when the fa- cilities and means of escape from danger were within their control, they were bound to use such means for the safety of the property intrusted to their care.^^ § 262. Bills of lading — Presumption from possession. — The court instructs the jury that the law presumes the car was at the time in possession of the S. Railway Company when the de- fendant issued its bill of lading; that the S. Railway Company at that moment became the agent, as between the consignee of this shipment and the defendant company, of the defendant com- pany.^" § 263. Bills of lading — ^Acceptance of car. — The court in- structs the jury that the defendant is presumed to have known what it was doing when it accepted the car, and that it can not now be heard to say that it did not, through itself or its agents, have possession of the car at the time it issued its bill of lading.^' " Nelson v. Great Northern R. Co., the legal effect incident to such a 28 Mont. 297, 72 Pac. 642. See also hypothetical state of affairs." Sand- Glasscock v. Chicago &c. R. Co., 86 ford v. Seaboard Air Line R. Co., 79 Mo. App. 114 (delay in transporta- S. Car. 519, 61 S. E. 74. tion) ; Gulf &c. R. Co. v. Cushney, " It was held that this charge was 95 Tex. 309, 67 S. W. 17 (delay by free from error. "The bill of lading, connecting carrier). being in writing proved and admitted, ""An examination of the charge was the subject-matter of the charge itself shows that the circuit judge by the circuit judge. He having treated the matter hypothetically and passed upon said written instrument, declared the law applicable to such he but discharged his duty.'' Sand- hypothesis. There is no error in this, ford v. Seaboard Air Line R. Co., 79 He merely pointed out to the jury S. Car. 519, 61 S. E. 74. 277 CARRIERS OF GOODS AND ANIMALS. § 266 § 264. Bills o£ lading — Estoppel to deny receipt of car. — The court instructs the jury that the defendant is estopped from claiming that it had not received the car after it had issued its bill of lading acknowledging the receipt of same, which bill of lading shows that the defendant received the car on the day of , in the year , which date of receipt is conclusive upon the defendant. There was no testimony in this case to show that the bill of lading was misdated." § 265. Bills of lading — Vessel's lien on cargo. — The court uistructs the jury that if the jury find the bill of lading offered in evidence, it was the duty of the master to unload the cargo on the wharf of the plaintiff, and until his duty was performed the vessel's lien upon the cargo for the freight was only inchoate and conditional and if the jury find that after the arrival of the vessel at the plaintiff's wharf and before the cargo was so un- loaded, the vessel was without notice to the plaintiff removed to a distant wharf of defendant for the purpose of being there un- loaded, then the defendant had no such special property in the wood as to defeat this action and the plaintiff is entitled to a verdict and to recover such actual damage as the jury may find from the evidence he has sustained in consequence of such re- moval." § 266. Liability of connecting carriers. — (1) The court in- structs the jury that if, from the evidence, you believe that the plaintiff is entitled to recover herein from all of the defendants, then you are instructed that it is your duty to determine the dam- age occasioned by the defendants severally, and so state in your verdict. If, from the evidence, you conclude that the plaintiff is entitled to recover against one or more of said defendants, then you will state in your verdict which defendant or defendants, and the amount found against it; and as to the defendant or de- fendants against whom you find no damage you will return a general verdict for such defendant or defendants." "Sandford v. Seaboard Air Line "Houston &c. R. Co. v. Gray, 38 R. Co., 79 S. Car. S19, 61 S. E. 74. Tex. Civ. App. 249, 85 S. W. 838. "^ McCuUough V. Hellweg, 66 Md. See also Houston &c. R. Co. v. Bath, 269, 7 Atl. 4SS. 40 Tex. Civ. App. 270, 90 S. W. 55; § 266 INSTRUCTIONS FORMS. 2/8 (2) The court instructs the jury that if, from the evidence, you beHeve that through the negHgence of the defendants, or either of them, plaintiff's cattle were injured in some or all of the particulars alleged by the plaintiff, then you are instriicted that the respective defendants herein would be liable only for the damage or injury occurring upon its own line, and from its own negligence, if such negligence was the direct and proximate cause thereof.^' (3) The court instructs the jury that if you believe from the evidence before you that on or about , , at , , plaintiff tendered to the Railway Company the cattle de- scribed in his petition for shipment, and if you believe that said railway company was guilty of an unreasonable and neg- ligent delay in receiving and accepting said cattle when so ten- dered to it, and if you believe that in the transportation of said cattle from to their destination in there were un- reasonable delays at or between the various points named in plaintiff's petition, or any of them, and if you further believe that such delays were the result of the negligence of defend- ants or any of them, and if you find that as a result of such un- reasonable delays, if any, said cattle were injured, and as a re- sult of such injuries any of said cattle died or were killed, then you will find for the plaintiff the damages he sustained thereby, and in estimating the amount of his damages you will fix the same at the market value at the place of destination of the cattle, if any, that died or were killed as a result of such negligence and unreasonable delays, to which you will add the difference, if any, in the market value at destination at time of arrival of all the cattle that survived and their market value at said place in the condition and at the time they should have arrived there but for such unreasonable delays, if any. And to the aggregate amount of damage so found by you, if any, you will add in- terest at the rate of per cent, per annum from the time of the arrival of said cattle at destination to the date of your ver- dict. If you find for plaintiff, you will apportion the amount of the damage found by you, if any, between the defendants accord- Millam v. Southern R. Co., 58 S. "Houston &c. R. Co. v. Gray, 38 Car. 247, 36 S. E. 571. Tex. Civ. App. 249, 85 S. W. 838. 279 CARRIERS OF GOODS AND ANIMALS. fa' 2^J ing to and in proportion to their respective liability, as indi- cated by instructions which have already been given you. And you will apportion the damages so found by you against those defendants only, if any, that you may find from the evidence were guilty of unreasonable delays in receiving and transporting said cattle, and in thus contributing to their injury, and you will find in favor of such defendants, if any, as you may find from the evidence did not contribute to the injury of said cattle by unreasonable delays in accepting said cattle and in transport- ing them over its own line of railway.^* (4) The court instructs the jury that no common carrier can be held liable or bound to carry beyond its own line, and no common carrier can be held liable or bound for any injury to any freight occurring on the line of another carrier, unless it has specially contracted^ for carriage of such freight beyond its own line. But if two or more carriers be engaged in business as such carriers as partners, and as such partners undertake the carriage of freight over one or more lines of railway, then both are liable on such undertaking as common carriers. The Railway Company of and the Railway Company, defendants, are partners. * * * jf yQ^ f^^^^ ^j^y damages in favor of the plaintiff, and if you believe from the evidence that the defendant Railroad Company alone was guilty of the negligence which caused such damages as you may so find, then you will return your verdict against said defendant alone, and in favor of both of the other defendants. If you find any damages in favor of the plaintiff, and if you believe from the evidence that the defendant Railway Company of and the Railway Company, or either of them, were guilty of the negligence which caused such damages as you may so find, and that the defendant Railroad Company was not guilty of any negligence causing or contributing to cause the damage which you may so find, then you will return your verdict in fa- vor of the last-named defendant, and against the defendants "Gulf &c. R. Co. V. Cushney, 95 v. Great Northern R. Co., 28 Mont. Tex. 309, 67 S. W. 77. See also 297, 72 Pac. 642. Delay in transporta- Houston &c. R. Co. v. Bath, 40 Tex. tion, see Glasscock v. Chicago &c. R. Civ. App. 270, 90 S. W. 55; Nelson Co., 86 Mo. App. 114. § 266 INSTRUCTIONS FORMS. 280 Railway Company of , and the Railway Com- pany.^^ (5) The court instructs the jury that if you believe from the evidence that on the day of , , the plaintiff delivered at , , to the Railroad Company, defend- ant, the cattle described in his petition, for transportation by it to , , to be there delivered to the defendant Rail- way Company of for further transportation to , , and that said cattle were at , aforesaid, by said Rail- road Company, delivered to the defendant Railway Com- pany of , and by it received for transportation by it or by it and its partner, the defendant Railway Company to ; and if you further believe from the evidence that the defend- ants, or any or either of them, were guilty of the acts or any of the acts of negligence in the preceding paragraphs of this charge numbered , , and , specified as complained of and alleged by plaintifif, and that by reason of such act or acts of negligence, if any such there were, the plaintiff's cattle, or any of them, were hurt and injured as in said paragraphs stated to have been alleged by plaintiff; and if you further believe from the evidence that by reason of such hurts and injuries to said cattle, if any such there were, some of said cattle were caused to die, and that they and others of said cattle were by reason of such hurts and injuries, if any such there were, reduced in their reasonable cash market value at the time when and in the condition in which they were actually delivered to plaintiff at below what such value would have been at said place when and in the condition in which they would have been there de- livered to the plaintifif but for such hurts and injuries, if any such there were, then you will find in favor of the plaintiff; and if you find in favor of the plaintifif you will assess his damages at the difiference between what you believe from the evidence was the reasonable cash market value of those of said cattle that were actually delivered to plaintifif at the time and place when and in the condition in which they were actually de- livered to him, and what you believe from the evidence would have been the reasonable cash inarket value at of those of " Houston &c. R. Co. v. Gray, 38 Tex. Civ. App. 249, 85 S. W. 838. 28l CARRIERS OF GOODS AND ANIMALS. § 267 said entire lot of cattle so delivered at to the Rail- road Company that would have been, but for such act or acts of negligence, if any such there v^rere, delivered to plaintiff at , at the time vi^hen and in the condition in which they would have been there delivered to plaintiff but for such act or acts of negligence, if any such act or acts of negligence there were, to- gether with interest on the amount of such difference at the rate of per cent, per annum from the time when said cattle were actually delivered to plaintiff at to the date of your ver- dict.^" § 267. Lost baggage — Burden of proof. — The court in- structs the jury that the burden is on the plaintiff to show that the A. Baggage & Cab Company received these trunks; and, if you believe from the evidence in the case that this company did receive them and did not deliver them at the B. House to the plaintiff in this case, then the company is liable. If you believe from the evidence that the baggage and cab company never re- ceived these four trunks, or one of these four trunks, then the company would not be liable to this plaintiff. Now, whether this company received these trunks is a question that you have to de- termine from this evidence. You look to the facts — ^you look to the circumstances which surround the case — and from all the facts and circumstances pass upon this question as to whether this company did receive that trunk or not; and, if you be- lieve from the facts and Jrom the circumstances which surround it that this company did receive it, you find for the plaintiff and against the defendant." " Houston &c, R. Co. v. Gray, 38 " Atlanta Baggage &c. Co. v. Mizo, Tex. Civ. App. 249, 85 S. W. 838. 4 Ga. App. 407, 61 S. E. 844. CHAPTER XXXII. CARRIERS OF PASSENGERS STEAM AND ELECTRIC RAILWAYS. Section 268. When relation commences — Pre- payment of fare — Implied invi- tation. 269. Duty to receive persons as pas- sengers — Intoxicated persons. 270. Duty to receive persons as pas- sengers — Infirm persons. 271. Degree of care imposed on car- rier. 272. Degree of care imposed on car- rier — Obstructions on track. 273. Degree of care imposed on car- rier — Collision with train on switch. 274. Degree of care imposed on car- rier — Derailment. 275. Degree of care imposed on car- rier — Hidden defects. 276. Degree of care imposed on the passenger — Contributory negli- gence. 277. Injury by inevitable accident. 278. Care as to premises — Waiting- rooms. 279. Care as to premises — Crowds at stations. 280. Injuries to passengers boarding trains. 281. Injuries to passengers boarding trains — Suddenly starting train. 282. Injuries to passengers boarding trains — Contributory negli- gence. 283. Care in transportation — Injury in attempt to escape threatened wreck. 284. Contributory negligence in vol- untarily going upon platform or passing into other cars. Section 285. Expulsion of passengers from train. 286. Occupying dangerous position on car. 287. Expulsion of passengers from trains — Arrest of passenger at conductor's order. 288. Injuries to passengers on mixed trains. 289. Assault on passenger by em- ployes. 290. Injuries to alighting passengers. 291. Injuries to alighting passengers — Calling out station as invita- tion to alight. 292. Injuries to alighting passengers — Duty to render assistance. 293. Injuries to alighting passengers — Reasonable opportunity to alight in safety. 294. Injuries to alighting passengers — Suddenly starting car while passenger in act of alighting. 295. Injuries to alighting passengers — Effect of unauthorized signal to start. 296. Injuries to alighting passengers — Contributory negligence. 297. Injuries to alighting passengers ' — Jumping from train at direc- tion of employes. 298. Injury after leaving car. 299. Presumption of negligence in op- eration of cars. 300. Burden of proof of negligent op- eration. 301. Violation of ordinances as to stopping places for street cars. 282 283 CARRIERS OF PASSENGERS. § 269 § 268. When relation commences — Prepayment of fare — Implied invitation. — (1) The court instructs the jury that when a car stops on the street to receive passengers, it invites persons to enter the car and become passengers, and, until that invitation is recalled, any person actually taking hold of the car and beginning to enter it is a passenger.^ (2) The court instructs the jury that to establish the relation of carrier and passenger the payment of fare is not always nec- essary ; that if the carrier permits the passenger to get upon the car without requiring payment in advance, the obligation of the passenger to pay will stand for the actual payment, for the pur- pose of giving effect to the contract to carry, with all its obliga- tions and duties. Taking his place upon the car with the inten- tion of being carried creates an implied agreement upon the part of the passenger to pay when called upon to do so by the carrier.^ § 269. Duty to receive persons as passengers — Intoxicated persons. — (1) The court instructs the jury that if you find from the evidence that, at the time plaintiff presented himself at the train of defendant in for the purpose of taking passage thereon, he appeared to be under the influence of in- toxicants or was intoxicated, or if the conductor or agents and employes of defendant in charge of said train honestly and in good faith believed that he was dcunk or intoxicated and for that reason refused to permit him to enter said train, then he can not recover, and your verdict must be for the defendant, un- less you further find that such discretion was abused, or unwar- ranted means used in preventing him from entering the train.' (2) The court instructs the jury that if you find from the evidence that the conductor in charge of defendant's train hon- estly and in good faith believed from plaintiff's appearance and from the smell of liquor on plaintiff's breath that plaintiff was drunk or intoxicated when he presented himself for passage upon defendant's train and that on account of his said condition 'Davey v. Greenfield &c. R. Co., 'St. Louis &c. R. Co. v. Hudson, 177 Mass. 106, 58 N. E. 172. 95 Ark. 506, 130 S. W. 534. 'Petersen v. Elgin &c. Trac. Co., 238 111. 403, 87 N. E. 345. § 270 INSTRUCTIONS FORMS. 284 the conductor refused to accept plaintiff as a passenger and used no more force than was necessary to prevent plaintiff from en- tering upon said train, then plaintiff can not recover and your verdict should be for the defendant.* (3) The court instructs the jury that if the conductor of a passenger train accepts one ^s a passenger, unattended, who, from drunkenness, is unable to look after himself, he, the con- ductor, in so doing, is acting within the scope of his authority. It is one of the duties of the conductor to pass upon the eligibil- ity, so to speak, of those presenting themselves for transporta- tion.'' § 270. Duty to receive persons as passengers — Infirm per- sons. — (1) The court instructs the jury that a railway com- pany is not required to accept as a passenger one without an at- tendant who, from an infirmity, is mentally or physically inca- pable of taking care of himself. But it can not refuse to receive as a passenger one who is capable of taking care of himself and whose. presence is not dangerous or hurtful or annoying to fel- low-passengers. ° (2) The court instructs the jury that if you believe from the evidence that plaintiff was a passenger on the defendant's train from L. to C. (names of stations), and that, at the time, the plaintiff was physically incapacitated to take care of himself, and that the defendant received and accepted him as such pas- senger, knowing or having been notified of his said infirm con- dition, or by same being apparent, and unattended, and the plain- tiff, on account of his infirm condition, was carried past his des- tination, C, and to the station of M., and that at the station of M. he was told to get off, or put off the train at that station, by the conductor, and the defendant, knowing the physical infiiTnities of plaintiff, or being notified thereof, did not use due care in * St, Louis &c. R. Co. V. Hudson, en in this case, but is announced by 95 Ark. 506, 130 S. W. 534. the reviewing court, which holds that ° Price V. St. Louis &c. R. Co., 75 the instructions given state this prin- Ark. 479, 88 S. W. 575, 112 Am. St. ciple in substance. Price v. St. Louis 79. &c. R. Co., 75 Ark. 479, 88 S. W. 575, "This principle of law is not em- 112 Am. St. 79. bodied literally in an instruction giv- 285 CARRIERS OF PASSENGERS. § 271 putting the plaintiff in some person's cai'e at M., and that, on account of the infirm mental condition of the plaintiff, he wan- dered away from M., unattended, and by reason of his mental infirmity was thereby injured, then the defendant is liable for a fair compensation for whatever damage and injury may have resulted therefrom/ § 271. Degree of care imposed on carrier. — (1) The court instructs the jury that, having received the plaintiff upon board of one of its cars as a passenger for the purpose of transportation along its line, the duty and obligation of the defendant railroad to the plaintiff and its other passengers on that car was to carry such passengers safely as far as it is capable by the exercise of a very high degree of care and caution; and the defendant is re- sponsible for all injury resulting to such passenger from any failure to exercise such care, and when the passenger suffers in- jury by the derailment of the train or car in question, the pre- sumption is that it was occasioned by some negligence of the de- fendant railroad, and the burden of proof is cast upon defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, and that the injury was occasioned by inevitable accident, or by some cause which could not have been avoided by the exercise of a very high degree of care and caution. And by a very high degree of care and cau- tion as used in these instructions is meant that degree of care which is ordinarily used by a very careful and skilful person un- der the same or similar circumstances.^ (2) The court instructs the jury that the defendant, as a common carrier of passengers, was bound to provide a reason- ably safe track and roadbed, and reasonably safe and staunch road, good cars, and careful employes to manage the same, so far as same could be provided by the exercise of a very high The latter portion of the instruc- of the words "physical" for ''mental" tion as given contained the words could scarcely have misled the jury, "physical condition" and "physical in- St. Louis &c. R. Co. v. Day, 86 Ark. firmity," whereas mental condition 104, 110 S. W. 220. or infirmity was meant. It was held ' Norris v. St. Louis &c. R. Co., to be correct with the exception of 239 Mo. 695, 144 S. W. 783. such last portion, but even the misuse 8 2/1 INSTRUCTIONS FORMS. 286 degree of care and caution, and is responsible for all injuries resulting from a failure to exercise such care by its agents and servants, and if the jury believe from the evidence that while the plaintiff was a passenger on one of defendant's cars at the time and place in evidence, the car in which plaintiff was a passenger was derailed, and that plaintiff was thereby injured, then the burden of proof rests upon the defendant to prove to your satisfaction the appliances and machinery by which said car was operated, and the roadbed, track, and ties of the road at the place of derailment, were reasonably safe and sound, so far as the exercise of a very high degree of care, caution, skill, diligence, and foresight could provide, and that said injury, if any, was caused by inevitable accident or defects in said machinery, appliances, roadbed, track, or ties that could not have been seen, detected, or known to the defendant, its agents or servants, by the exercise of such high degree of care and caution." (3) The court instructs the jury that if you believe from the evidence that on the occasion in question the plaintiff's intestate, D., had purchased a ticket over defendant's road from to , and had taken a seat in one of the coaches for the pur- pose of riding to , then he was a passenger on the train, and it was the duty of the defendant's agents in charge of the train to exercise the highest degree of care which prudent per- sons engaged in a like business usually exercise to carry him safely as a passenger to his destination, and to allow him to alight safely from the train. The failure to exercise said care was negligence on their part.^° (4) The court instructs the jury that the duty of the de- fendant company in engaging to carry passengers for hire is to exercise extraordinary care and diligence; that is, that ex- treme care and caution which very prudent persons exercise in securing and preserving their own property. It is the duty of the defendant to exercise that care and diligence, not only in the construction of the road and the laying of the rails, but •Norris v. St. Louis &c. R. Co., "Illinois Cent. R. Co. v. Dallas, 239 Mo. 695, 144 S. W. 783. 150 Ky. 442, 150 S. W. 536. 287 CARRIERS OF PASSENGERS. § 27I in the maintenance of that road and those rails; and it is the duty of the defendant that extreme care and caution be used in the management of its cars, .through its operatives and em- ployes. And if you find that the defendant was negligent in either of these respects, and that negligence was the proximate cause of this derailment of the car and the injury, and the plain- tiff could not have avoided the consequences of that negligence by the exercise of ordinary care, the plaintiff would be entitled to recover." (5) The court instructs the jury that it is the duty of the street car company, as any other carrier of passengers, to exer- cise the highest degree of care that is consistent with the per- formance of its duty of conveying passengers, in order that the passengers may not suffer injury; and if the company fails to exercise the highest degree of care consistent with the per- formance of its duty, and the passenger suffers injury by reason of such failure, then that is an injury due to the negligence of the defendant, and the defendant is responsible for the result of its negligence. ^^ (6) The court instructs the jury that defendant was not bound to carry plaintiff safely, absolutely and at all events, but was only bound to operate its train of cars under all of the circumstances with the highest degree of care of a very pru- dent person, and, if the jury are satisfied, from all the evidence in the case, that defendant's servants operating the coach from which plaintiff says he was thrown gave plaintiff reasonable opportunity to get in a place of safety before the car was started, then the verdict will be for defendant.^^ (7) The court instructs the jury that if they believe from the evidence in this case that the defendant company, at the time of the occurrence of the alleged injury in the declaration " Macon Consol. St. R. Co. v. R. Co. v. Means, 136 Fed. 83, 68 C. C. Barnes, 113 Ga.212,38 S. E.7S6. De- A. 651. gree of care required, see Bosqui v. "Best v. Columbia &c. Power Co., Sutro R. Co., 131 Cal. 390, 63 Pac. 85 S. Car. 422, 67 S. E. 1. 682. Liability for personal injuries, "O'Connell v. St. Louis Cable &c. see Georgia R. &c. Co v. Tice, 124 R. Co., 106 Mo. 482, 17 S. W. 494. Ga. 459, 52 S. E. 916; Columbia &c. § 271 INSTRUCTIONS FORMS. 288 mentioned, was engaged in running and operating street cars in the City of S. for the purpose of carrying passengers, then it was bound to use the utmost care and diligence for the safety of its passengers and is liable for injuries to its passengers oc- casioned by the slightest neglect against which human prudence and foresight might have guarded.^* (8) The court instructs the jury that a common carrier of passengers, through its servants in charge of its cars, is re- quired to do all that human care, vigilance and foresight can reasonably do to avoid injury to a passenger, having in view the character and mode of conveyance adopted and consistent with the practical operation of the road.^^ (9) The court instructs the jury that if they believe, from all the evidence in this case, that on or about the day of , in the year , the defendant was controlling and oper- ating a train of cars on a railroad in this county, and that the defendant received the plaintiff on its cars as a passenger, for hire, then the defendant was bound to make up its train, couple its cars and manage and control its cars and engines in such a careful, skilful and prudent manner as to carry the plaintiff with reasonable safety as such passenger.^* (10) The court instructs the jury that negligence, when ap- pHed to a carrier of passengers, in so far as is necessary to define to you in, this case, means the failure on the carrier's part to ex- ercise the utmost care and diligence for their safe transportation over its line, and to provide everything necessary for that pur- pose, and to that end to exercise a reasonable degree of skill in the equipment of its roadbed, cross-ties, and rails. When the plaintiff in this case shows to your satisfaction, by a fair pre- ponderance of the evidence, that she was a passenger on defend- ant's cars, by virtue of having purchased a ticket from defend- ant's agent, and while riding on said cars the car in which she " Blue Ridge Light &c. Co. v. Price, sumed facts not established and on 108 Va. 652, 62 S. E. 938. the further ground that it was not " Sandy v. Lake Street Elev. R. limited to what happened on the par- Co., 235 111. 194, 85 N. E. 300. ticular day mentioned. Both objec- " Objection was made to this in- tions were held untenable. Hannibal struction on the ground that it as- &c. R. Co. v. Martin, 111 111. 219, 289 CARRIERS OF PASSENGERS. § 2/2 was situated was derailed and thrown from the track, caused by reason of defective cross-ties or improper spiking of the rails to the ties, and that she was injured while in said car as a result of the derailment, and that the same was the proximate cause of said injury, and has pointed out to you by competent evidence the character of the injury, she has made out a prima facie case which raises a presumption of negligence on the defendant's part which the railroad company has the burden of overcoming by clear and explicit proof that the accident could not have been avoided by the use of the utmost care and diligence, and that, in the construction and maintenance of its roadbed and the laying and maintenance of the cross-ties and rails, it used the utmost care for the safe carriage of passengers over its road, and to that end exercised a reasonable degree of skill in seeing that the road was equipped with proper and sufficiently sound ties and rails that were properly spiked to the ties at the time of the derail- ment. While the defenda,nt company was bound to use the ut- most care and diligence for the safe carriage of passengers for hire on its road, and must provide everything necessary for that purpose, and to that end must have exercised a reasonable degree of skill in the maintenance of its roadbed, cross-ties, and rails to prevent injury to its passengers, the law does not require it to be an insurer of the actual safety of passengers being carried over its road, and in this case, if you believe from the evidence that the injury complained of by the plaintiff was occasioned by some defect in the roadbed, cross-ties, or rails which a thorough or careful examination would not disclose, and that it could not have been guarded against by the exercise of skill in the employment of men and means to have avoided the injury, the defendant would not be liable, and you should so find in your verdict.^"^ § 272. Degree of care imposed on carrier — Obstructions on track. — The court instructs the jury that if you find that there was an obstruction on the rails, the question arises, "Would the accident have occurred if there had been no obstruction?" If you find that the accident would not have occurred without the obstruction, then, subject to what I have just told you, the ''a Missouri &c. R. Co. v. Vandi- vere (Okla.), 141 Pac. 799. 19— Branson's Inst. § 273 INSTRUCTIONS FORMS. 290 obstruction was the proximate cause of the injuries to plain- tiff, and he can not recover from defendant, unless, on the whole case, it has been shown by competent evidence that de- fendant or its servants placed the obstruction on the rails, ' or unless the servants of defendant could, by the exercise of the care exercised by a very cautious person, have discovered the obstruction in time to have avoided the accident.*^ § 273. Degree of care imposed on carrier — Collision with train on switch. — The court instructs the jury that if you find from all the facts and circumstances of the case that the de- fendant company constructed this side-track used by certain parties for the purpose of loading cars along its line for the purpose of transportation over its railway, and such parties using said switch left said switch open negligently, and it was known to the defendant company or could have been ascertained by them by the exercise of extraordinary care and diligence and it was not ascertained, and they failed to exercise such care and diligence and the wreck occurred in that way, then that was negligence on the part of the defendant company.^^ § 274. Degree of care imposed on carrier — Derailment. — The court instructs the jury that if they find and believe from "Bosqui V. Sutro R. Co., 131 Cal. and did not amount to an expression 390, 63 Pac. 682. Carrier's liability of opinion on the facts. With re- for personal injuries generally, see spect to the criticism that the charge Columbia &c. R. Co. v. Means, 136 imposed upon the carrier the duty of Fed. 83, 68 C. C. A. 651 ; Georgia exercising extraordinary care and R. &c. Co. V. Tice, 124 Ga. 4S9, 52 S. diligence in the discovery of the open E. 916; Comerford v. New York &c. switch, we do not think that the R. Co., 181 Mass. S28, 63 N. E. 936. charge is erroneous for that reason. " "This instruction is alleged to be Extraordinary care is the measure of erroneous because it was an expres- diligence required of a railroad com- sion of opinion that the enumerated pany toward passengers, and this de- facts and circumstances constituted gree of care in the protection of negligence and because it imposed passengers applies as well to the upon the carrier the duty of exercis- construction and maintenance of ing extraordinary care and diligence tracks as to the operation of cars in the discovery of the open switch, thereon." Wadley Southern R. Co. It was but a concrete statement of v. Kennedy, 136 Ga. 440, 71 S. E the principle that the failure to exer- 740. cise due care constitutes negligence 291 CARRIERS OF PASSENGERS. § 276 the evidence that on or about the day of , , the plaintiff was a passenger on one of defendant's trains, and that while so a passenger and being carried thereon upon defendant's road, the car in which plaintiff was being carried was derailed, and that plaintiff was thereby thrown from her seat in said car and thereby injured, then the law presumes that such injury to plaintiff was caused by defendant's negligence, and such facts, if proven by a preponderance of the evidence, make out a pre- sumptive case for the plaintiff, and you should find a verdict for the plaintiff, unless you further believe from the evidence that notwithstanding this presumption the defendant at the time of the happening of the injury had in fact then fully performed, or was then fully performing, its duty, as defined and stated in other instructions herein, toward plaintiff as such passenger, or that such injury to plaintiff, if any, did not occur because of any failure of the defendant in such respect.^* § 275, Degree of care imposed on carrier — Hidden defects. — The court instructs the jury that if they find from the evi- dence that the accident complained of by the plaintiff was caused solely by a hidden or latent defect — not apparent to the eye — in the trolley wire of the defendant and that the defendant could not have discovered or detected it by any reasonable ex- amination by the defendant or its agents; and the jury further find that the defendant company employed proper and suitable contractors to erect the trolley wire and overhead construction at the place of the accident; and that such contractors used suitable material and a proper and skilful method of overhead construction — then defendant has performed its duty to the passenger in this regard, and the verdict must be for the de- fendant, even though the jury further find that the plaintiff, without fault on his part, did receive injuries by reason of the breaking and falling of said trolley wire.^" § 276. Degree of care imposed on the passenger — Contrib- utory negligence. — (1) The court instructs the jury that the " Norris v. St. Louis &c. R. Co., v. Nugent, 86 Md. 349, 38 Atl. 779, 39 239 Mo. 695, 144 S. W. 783. L. R. A. 161. "Baltimore City Passenger R. Co. § 2/6 INSTRUCTIONS FORMS. 292 plaintiff as a passenger was not required by law to exercise ex- traordinary care or manifest the highest degree of prudence to avoid injury. All the law required of him while traveling as a passenger was that he should exercise ordinary care and pru- dence for his safety, such as ordinarily careful persons would exercise under the same circumstances as those shown in evi- denced^ (2) The court instructs the jury that defendant, in its answer, denies the negligence alleged as the cause of plaintiff's alleged injuries, and, in addition thereto, defendant alleges that said injuries, if any, were caused by plaintiff's own negligence directly contributing thereto in attempting to board a moving car before the same had come to a stop for the purpose of receiving passengers. While the burden is on defendant to pi'ove the allegation of its answer to the purpose that plaintiff was in- jured by her own negligence, yet that does not relieve the plain- tiff from the burden of proving, by the greater weight of the evidence, that her injuries, if any, were caused by the negli- gence of defendant and its servants in the manner in which plaintiff charges it was done. In other words, plaintiff must prove, to the satisfaction of the jury, by the greater weight of the evidence, that she received the injuries, if any, of which she complains, in the way she alleges she received them, and unless she has so done the verdict must be for defendant.^^ (3) The court instructs the jury that if you believe from the evidence that the plaintiff received the injuries of which she complains by stepping on the skirts of her dress, and thus tripping and throwing her, or by stumbling over the door sill leading into the coach of the defendant, and thus receiving said "■ This instruction does not violate quired of the plaintiff was ordinary the rule forbidding a charge on infer- care, which is such a degree of care ences from the evidence, nor is it as ordinarily careful persons would open to objection on the ground that exercise under similar circumstances." the two sentences are in conflict if West Chicago St. R. Co. v. McNulty, taken in a general sense. "The obvi- 166 111. 203, 46 N. E. 784. ous and unmistakable meaning of the ''^Flaherty v. St. Louis Trans. Co., instruction is that all the care re- 207 Mo. 318, 106 S. W. IS. 293 CARRIERS OF PASSENGERS. § 278 injuries, and not by the negligent jerk or lurch of the train, you will return a verdict for the defendant.^' § 277. Injury by inevitable accident. — The court instructs the juiy that the defendant in this case was, at the time of the injury complained of, a carrier of passengers for hire in , ■, and as such it was bound to provide reasonably safe track, roadbed, and roadworthy cars, and careful employes to manage the same, so far as practicable human skill, diligence, and fore- sight could provide ; and it is responsible for all injuries to passen- gers resulting from negligence on the part of its agents or serv- ants. If, therefore, the jury believe from the evidence that on or about the day of , , the plaintiff, G. D. F., boarded one of defendant's cars on its line of road, and paid his fare to be transported to defendant's depot at avenue, in said ; and you further find that there is a descent in defendant's track or roadbed from a point near street down to defendant's depot at avenue; and you further find and believe from the evidence that said train (by the carelessness and negligence of defendant's servants, agents, and employes), got beyond the control of the servants of defendant, and ran rapidly down said descent, and the car upon which plaintiff was a passenger left the track and was overturned, and plaintiff was thereby injured without fault or negligence on his part, — then it devolves upon defendant to prove to your satisfaction that the accident was caused by inevitable accident, that could not have been detected or known to its agents or servants by the exercise of the utmost practicable human skill, diligence, and foresight, and unless it is so shown you should find for plaintiff.^* §278. Care as to premises — Waiting-rooms. — (1) The court instructs the jury that the evidence shows that the plain- tiff was a passenger on defendant's passenger train arriving ^t , , on or about the time alleged, and, as such passenger, she was entitled to the rights and privileges of such to occupy defendant's waiting-room in its depot at , , '' Missouri &c. R. Co. v. Juricek " Feary v. Metropolitan St. R. Co., (Tex. Civ. App.), 147 S. W. 327. 162 Mo. 75, 62 S. W. 452. § 278 INSTRUCTIONS — -FORMS. 294 for such length of time after her arrival there as would be reasonably necessary for her to safely depart therefrom, con- sidering all the facts and circumstances shown by the evidence. It was the duty of the Company to use that high degree of care defined in paragraph of this charge to keep its said waiting-room warm for at least one hour after the arrival of its said passenger train at said station when there are passengers arriving thereon, and when the weather was such that the com- fort and health of such passengers makes it reasonably neces- sary that its waiting-room should be warm, and not cold, and also for such additional time after the expiration of one hour as would be reasonably necessary for such passenger to safely depart from said depot, taking into consideration all of the facts and circumstances surrounding the passenger at the time and that is shown by the evidence.^^ (2) The court instructs the jury that it was the duty of the defendant, as a common carrier of passengers, to provide rea- sonably safe and suitable means at its regular station, where it habitually received and discharged passengers, for such passen- gers to get on and ofif its cars at such station; and if you find from the evidence that defendant had failed and neglected to provide any reasonably safe and suitable means at its station of , and that said station was a regular station on its road, at which it habitually received and discharged passengers, then the court instructs the jury that such failure constituted negli- gence on the part of the defendant; and if you further find from the evidence that plaintiff, in attempting to get on a passenger train of defendant at said station of , for the purpose of taking passage to station, on defendant's road, slipped, and injured herself, by reason of the failure of the de- fendant to have reasonably safe and suitable means at said station to enable passengers to get on to defendant's trains, then your verdict must be for the plaintiff, unless you further find that plaintiff, by her own negligence, directly contributed thereto."' " Texas Cent. R. Co. v. Perry (Tex. " Eichorn v. Missouri &c. R. Co., Civ. App.), 147 S. W. 305. 130 Mo. 575, 32 S. W. 993. 295 CARRIERS OF PASSENGERS. § 279 (3) The court instructs the jury that although they may be- heve that plaintiff had not boarded the car, but was trying to do so, and that the pressure of a crowd about and around her, combined with her attempt to board the car, threw her down, and that thereby her foot was caught under a wheel of the car and injured, and that she was not thrown from the car by its moving forward and said car sustaining a shock, then plaintiff can not recover and the verdict must be for defendant.^^ (4) The court instructs the jury that you have the right to infer an invitation to plaintiff to be at the place where he was injured, if the evidence shows that the business he was engaged in at the time was of common interest or mutual advantage to the company and him, and if, while there on such business, by the failure of the defendants to use ordinary care to keep said place safe as alleged without fault on his part, you should find a verdict for the plaintiff."* (5) The court instructs the jury that, before plaintiff can recover, he must show by a fair preponderance of the evidence that he had gone to the place where he was injured for the pur- pose of getting newspapers as alleged in the complaint, and that the defendant, the S. Railway Company, had invited the plain- tiff, directly or by implication growing out of a custom of deliv- ering to him said papers at that place.''" (6) The court instructs the jury that if the plaintiff went to defendant's depot on the day mentioned in the complaint, to take passage on defendant's train, and at that time the weather was such as to require a fire in the waiting-room to make it comfortable, it was defendant's duty to build and keep a fare in said waiting-rootn ; and, if it failed to do so, and plaintiff suffered in consequence of defendant's failure to build and keep such fire, your verdict will be for the plaintiff.'" § 279. Care as to premises — Crowds at stations. — The court instructs the jury that when a common carrier, its agents "Flaherty v. St. Louis Trans. Co., "Southern R. Co. v. Sieg, 46 Ind. 207 Mo. 318, 106 S. W. IS. App. 259, 92 N. E. 194. " Southern R. Co. v. Sieg, 46 Ind. " St. Louis &c. R. Co. v. Wilson, 70 App. 259, 92 N. E. 194. Ark. 136, 66 S. W. 661, 91 Am. St. 74. § 28o INSTRUCTIONS— -FORMS. 296 and servants, have knowledge of, or from circumstances ought to know, that on certain days of the week large crowds of passengers board its trains of cars at certain regular stations in a populous vicinity along its line of railroad, it is the carrier's duty, under such circumstances, to provide sufficient accommo- dations as required by law so as safely to transport its passen- gers without subjecting them to unnecessary risk and danger from lack of accommodations to handle such large crowds of passengers, and if the carrier knew or had reasonable grounds under the circumstances to anticipate danger from the handling of such large crowds, it is also held to the highest degree of care, on such occasions, to provide a sufficient force of employes and servants to control the large crowds of passengers, though this may require the employment of an extra force of help, so as to protect innocent passengers from assaults or other injuries at the hands of fellow passengers, and, should the -carrier fail to perform either of these duties, in consequence of which a passenger sustains an injury from another passenger, without fault on his part, it is liable in damages.'^ §280. Injuries to passengers boarding trains. — (1) The court instructs the jury that if they find from the evidence in this case that the defendant, on the day of , in the year , was operating the car mentioned in the evidence as injuring the plaintiff, as a carrier of passengers for hire, and if the jury find from the evidence that, on the evening of said day, at or near C, at the place mentioned in the evidence, de- fendant's servants in charge of said car received the plaintiff as a passenger on said car, and if the jury find from the evi- dence that, while the plaintiff was on said car and the running board thereof, and before she had a reasonable time or oppor- tunity to reach a seat on said car, or a place of safety on said car, defendant's servants in charge of said car negligently caused or suffered said car to start and move forward and sustain a shock, and that thereby plaintiff was thrown from said car and run upon, and her foot crushed and injured by the wheel of " Anderson v. South Carolina &c. R. Co., 81 S. Car. 1, 61 S. E. 1096. 297 CARRIERS OF PASSENGERS. § 280 said car, and if the jury find from the evidence that plaintiff was exercising ordinary care at the time of her injury, she is en- titled to recover.'^ (2) The court instructs the jury that, if they find from the evidence in this case that defendant was, on the day of , in the year , operating the car mentioned in the evi- dence as injuring the plaintiff, for the purpose of carrying passengers for hire, and if the jury find from the evidence that on the evening of said day, at or near C, defendant's servants in charge of said car stopped said car at the platform men- tioned in the evidence, and that said place was one of the points where defendant usually received passengers on said car, then the court declares the law to be that defendant's servants in charge of said car virere in duty bound to keep said car stopped until all passengers intending to become passengers on said car had a reasonable time and opportunity to do so, and before starting said car (if they did so start said car), to use ordinary care to see that no passenger was in danger from a movement of said car.^* (3) The court instructs the jury that before they can find for the plaintiff in this case, they must believe from the greater weight of the evidence that plaintiff got on to the running board or step of the car when it had stopped and that while she was in that position the car was started forward and sustained a shock, by which she was thrown from the car and received her injuries, and, unless they so believe, then she can not recover in this case, although the jury may believe that defendant was negligent in some other way or manner.'* (4) The court instructs the jury that if they believe from the evidence that was a station on the defendant's rail- road at which defendant habitually received and discharged passengers, and that on the day of , , one of the defendant's passenger trains stopped at for the purpose of " Flaherty v. St. Louis Trans. Co., " Flaherty v. St. Louis Trans. Co., 207 Mo. 318, 106 S. W. IS. 207 Mo. 318, 106 S. W. 15. " Flaherty v. St. Louis Trans. Co., 207 Mo. 318, 106 S. W. IS. § 28l INSTRUCTIONS FORMS. 298 receiving passengers; and if you further believe from the evi- dence that plaintiff got aboard of said train at , and took passage to station, on defendant's railroad, paying the reg- ular fare therefor; and if you further believe from the evidence that plaintiff, while getting aboard said train, through the care- lessness and negligence of the defendant in not having any plat- form or other reasonably safe and suitable means for getting on to said train, and without any fault or negligence on her part, the plaintiff slipped from one of the steps of one of the cars in said train, and was strained and wounded in the spine and right side and right arm, leg, and foot, — then you will find the issues for the plaintiff, unless you further find from the evidence that plaintiff's injuries, if any, were caused by her own negli- gence contributing directly thereto; and the jury are instructed that the burden of proving such contributory negligence rests on the defendant.^" (5) The court instructs the jury that the reasonable time which the defendant was required to hold its train for passen- gers to get on and off is such time as a person of ordinary care and prudence should be allowed to take; and in determining this reasonable time it is the duty of the carrier to take into consideration any special condition peculiar to the passenger, and to give a reasonable time, under the existing circumstances as they are known, or should be known, by its servants, for passengers to get on and off its train.** § 281. Injuries to passengers boarding trains — Suddenly starting train. — (1) The court instructs the jury that if you find that after the conductor advised or directed plaintiff to return to the office and procure a ticket, if he did so, the con- ductor allowed plaintiff sufficient time, by the exercise of rea- sonable diligence, to procure a ticket and return to and board the train before it started, then the starting of said train before the plaintiff got on it would not be negligence.*^ "Eichorn v. Missouri &c. R. Co., "Missouri &c. R. Co. v. Gist, 31 130 Mo. 575, 32 S. W. 993. Tex. Civ. App. 662, 73 S. W. 857. ™St. Louis &c. R. Co. V. Wright, 105 Ark. 269, 150 S. W. 706. 299 CARRIERS OF PASSENGERS. § 281 (2) The court instructs the 'jury that, if they believe from the evidence in this case that the defendant, through its servants and agents, stopped a certain one of its cars near the rail- way depot for the purpose of inviting and receiving passengers on board its cars, and that, while said car was standing for that purpose, the plaintiff attempted to get on board of said car as a passenger, and while the car was standing still, and when she had taken hold of the railing of the platform and was attempting to get on the car, and before she had time to get on, the car was suddenly and without any warning to her negligently started and the plaintiff was thrown, knocked and jerked down on the street and injured, then the jury ought to find a verdict for the plaintiff, if they believe from the evidence that the said negligent starting of said car was the proximate cause of the plaintiff's injury.*' (3) The court instructs the jury that if you find and believe from the evidence that on or about the day of , , the defendant was operating certain lines of street railroads in the city of , , and particularly a double-track line of railroad runniiig east and west on avenue, past the inter- section of and avenues, in said city; and if you fur- ther find and believe from the evidence that the plaintiff at- tempted to board one of the defendant's east-bound cars on avenue, at the intersection of said and avenues, and on the east side of said avenue and south side of said avenue, at a place where defendant's cars were in the habit of stopping to receive passengers, and that plaintiff, at said time and place, had reason to believe, and did believe, that said car was stopping for passengers to board said car at said place ; and if you further believe and find from the evidence that the plain- tiff took hold of the handrail of said car at the rear end thereof for the purpose of becoming a passenger on said car ; and if you find from the evidence that the defendant's servants in charge of said car knew, or by the exercise of ordinary care should have known, that plaintiff was attempting to board said car as a passenger; and if you further believe from the evidence that "Blue Ridge Light &c. Co. v. Price, 108 Va. 652, 62 S. E. 938. § 282 INSTRUCTIONS FORMS. 3OO after the plaintiff had so taken hold of the handrail of said car at the rear end thereof for such purpose the said servants in charge of said car suddenly started the same before the plain- tiff had a reasonable time to get upon said car and to a place of safety therein, and that the injury complained of was caused by the failure to stop the car and by such sudden starting of the car under such circumstances; and if you further believe from the evidence that the plaintiff at the time exercised ordinary care in attempting to board the car in the manner shown by the evidence — then your verdict should be for the plaintiff.^® (4) The court instructs the jury that if you find from the evi- dence that the plaintiff went into the defendant's office at within minutes before the departure of said train for the purpose of purchasing a ticket with intent to take passage on de- fendant's train, and that the agent was not present in said office, and for that reason plaintiff did not purchase a ticket, and if he then went to the train and offered to board it, and if the con- ductor of said train directed or requested plaintiff to return to the office and procure a ticket, then it became the duty of said conductor to allow plaintiff a reasonable time in which to pro- cure a ticket and return to said train before starting it; and if you find that the conductor started said train before plaintiff had time, by the exercise of reasonable diligence, to procure a ticket and return to and board said train, this would constitute negligence on the part of the defendant.^"* § 282. Injuries to passengers boarding trains — Contribu- tory negligence. — (1) The court instructs the jury that if you believe from the evidence that the plaintiff attempted to board the car in question while it was in motion, and that her fall and injury were due to that fact, and that such conduct on her part was a want of ordinary care for her own personal safety, then you are instructed that she can not recover in this case and the verdict should be not guilty.*" '° Maguire v. St. Louis Trans. Co., tan St. R. Co., 42 Misc. 192, 85 N. Y. 103 Mo. App. 459, 78 S. W. 838. For S. 400. similar instructions, see Maxey v. ''» Missouri &c. R. Co. v. Gist Metropolitan St. R. Co., 95 Mo. 303, (Tex.), 73 S. W. 857. 68 S. W. 1063 ; Doering v. Metropoli- " The first clause of the instruction 301 CARRIERS OF PASSENGERS. § 282 (2) The court instructs the jury that, while it was the duty of defendant, as a carrier of passengers, to exercise a high degree of care in receiving and protecting plaintiff if she sought to enter defendant's car as a passenger, yet plaintiff ought on her part to exercise ordinary care when seeking to become a passenger, and if she entered, or attempted to enter, defend- ant's car while it was in motion she did so at her own peril, unless the jury further believe that defendant's servants in charge of the car, by their conduct, invited her to enter before the car stopped ; and if the jury further believe that defendant's conductor and others, if any, acting upon the request of de- fendant's servants, publicly warned those seeking to become passengers to stay off the car until it stopped, and that notwith- standing plaintiff entered, or attempted to enter, the car before it stopped, then plaintiff was not received as a passenger and was not exercising ordinary care on her part, and the verdict must be for defendant.^^ (3) The court instructs the jury that if they believe from the evidence that , plaintiff, was an old man and attempted to board the defendant's car without invitation from the de- fendant or its agents, while it was in motion, very much crowded both inside and on the platform; and that after getting a foot- ing on the car he let go his hold on the railing to catch at his hat, and fell, he was guilty of contributory negligence and they must find for the defendant unless they believe from the evi- dence that the defendant could have prevented the accident by due care on its part.*^ as given was, "If it appears from the " This instruction, although refused evidence that the plaintiff," etc. It by the trial court, "was a proper dec- was held that, although this form of laration of law." It was given in expression was not the most suitable, substance in other instructions in the jury could not have been misled, this case, and, except for this fact, as in other instructions they were "it would have been palpable error told in substance that the case must to refuse it." Flaherty v. St. Louis be decided on the evidence, under Trans. Co., 207 Mo. 318, 106 S. W. IS. the instructions of the court. In its " Reynolds v. Richmond &c. R. Co., modified form, the instruction was 92 Va. 400, 23 S. E. 770. unexceptionable. Lecklieder v. Chi- cago City R. Co., 172 111. App. SS7. § 282 INSTRUCTIONS FORMS. 3O2 (4) The court instructs the jury that if you find that the plaintiff was injured while attempting to board a moving- train, but if you further find that a person of ordinary prudence and caution, under the circumstances shown by the evidence, would not have attempted to do so, or if such a person, under the circumstances in evidence, would not have continued to try to board said train as long as plaintiff did, then the plaintiff can not recover, and you will find for defendant, even though you should find that defendant was guilty of all the acts of negligence charged against it.*^ (5) The court instructs the jury that if you find from the evidence that the failure of the plaintiff to get aboard said train before it started was caused by the negligence of the de- fendant, and if the plaintiff attempted to board said train while it was in motion, and if in so doing he fell or was thrown down as alleged in the petition, and injured, and if his injury was caused by the negligence of the defendant, and if he did not contribute to the bringing about of his injury by his own fault or negligence, you will find for the plaintiff/* (6) The court instructs the jury that if you believe from the evidence that the plaintiff was injured in attempting to get upon one of defendant's trains at station, and that such injury was occasioned in whole or in part by the plaintiff's failure or neglect to exercise such care, caution, and foresight as a woman of ordinary care, caution, and foresight would have exercised under the circumstances surrounding the plaintiff at the time, then such injury was due to the plaintiff's negligence, and your verdict must be for the defendant/^ *= Missouri &c. R. Co. v. Gist, 31 "Missouri &c. R. Co. v. Gist, 31 Tex. Civ. App. 662, 12, S. W. 857. Tex. Civ. App. 662, 73 S. W. 857. For similar instructions on contrib- *" Eichorn v. Missouri &c. R. Co., utory negligence, see Eichorn v. Mis- 130 Mo. 575, 32 S. W. 993. For simi- souri &c. R. Co., 130 Mo. 575, 32 S. lar instructions on contributory negli- W. 993 ; Louisville &c. R. Co. v. Con- gence, see Chicago &c. R. Co. v. Pol- nelly, 9 Ky. L. 993, 7 S. W. 914; Chi- lard, S3 Nebr. 730, 74 N. W. 331; cago &c. R. Co. v. Pollard, S3 Nebr. Galveston &c. R. Co. v. Henning 730, 74 N. W. 331; Benedict v. Port (Tex. Civ. App.), 39 S. W. 302; Lou- Huron, 124 Mich. 600, 83 N. W. 614. isville &c. R. Co. v. Connelly, 9 Ky. 303 CARRIERS OF PASSENGERS. § 283 § 283. Care in transportation — Injury in attempt to escape threatened wreck. — (1) The court instructs the jury that if you find from the evidence that the plaintiff boarded defendant's train as a passenger, at B., as alleged in his complaint, and that the train came uncoupled, or broke loose from the engine, and the car on which the plaintiff was riding was going backward, uncontrolled, toward O., and in an effort to avoid the peril or injury from a threatened wreck, the plaintiff, in the exercise of ordinary care, jumped from the car and was injured, this will make a prima facie case of negligence against the defendant, and will be sufficient to cast upon it the burden of proving that it was .free from negligence in permitting the engine to become uncoupled, or broken loose from under the train and in per- mitting the train to get from under the control of the engineer or others in charge of the train ; if you find that it did get from under their control.*" (2) The court instructs the jury that if you find from the evidence in this case that the deceased, S. E., was a passenger on defendant's train, and that the train was wrecked or de- railed, then the mere fact that the deceased through fear or apprehension of danger did an act which was the immediate cause of injury to himself, does not of itself amount to negli- gence, if the negligence of the defendant put the deceased in peril, and in attempting to escape that peril he did an act, also dangerous, from which injury resulted to him, such act would not necessarily be an act of contributory negligence, such as would prevent a recovery for such injury. The test of contribu- tory negligence under such circumstances is. Was his attempt to escape, if you believe he made an attempt to escape, an un- reasonable or rash act, or was it an act that a person of ordinary prudence might do under like existing circumstances, and it is not to be determined by the result of the attempt to escape, or by the result that would have followed had the attempt not been made. If you should find from the evidence that the deceased, L. 993, 7 S. W. 914; Wilder v. Great '"'Prescott & Northwestern R. Co. Western Cereal Co., 130 Iowa 263, v. Morris, 92 Ark. 365, 123 S. W. 392. 104 N. W. 434. § 284 INSTRUCTIONS FORMS. 3O4 by the negligent wrecking of the train, was placed by the de- fendant in a position of danger while in the car of the defendant, then the deceased would have the right to judge of the danger in remaining in said car and also the dangers in attempting to escape from the circumstances as they appeared to him at the time, and not by the result, and, if he in making such at- tempt to escape used such care as a prudent man under such circumstances should have used, and in doing so received an injury, your verdict should be for the plaintiff.*'' § 284. Contributory negligence in voluntarily going upon platform or passing into other cars. — The court instructs the jury that if you believe from the evidence that while the train was in motion the said plaintiff, for his own convenience, left the inside of the car in which he had been riding and went upon the platform for the purpose of riding there, or of passing into the next car in search of a seat, the plaintiff assumed all risk of falling or being thrown from the said train by reason of the motion or oscillation thereof, whether caused by speed, curves, frogs or switches, and you must find for the defendant.** §285. Expulsion of passengers from trains. — (1) The court instructs the jury that if you are reasonably satisfied from this evidence that the plaintiff paid this ten-cent fare, then a wrong was inflicted upon her in attempting to put her off before she got to the end of her journey. It was a wrongful ejection or attempted ejection, and for that wrong she would be en- titled to damages against the company.*' (2) The court instructs the jury that if you believe from the evidence that the plaintiff paid the conductor her fare from B. to H., then the conductor [in ejecting plaintiff from the car] committed an assault and battery upon the plaintiff, for which the defendant is liable in any damages the plaintiff may have suffered, if any, not exceeding the amount claimed in the com- " St. Louis &c. R. Co. V. Evans, 99 " Birmingham R. &c. Co. v. Lee, Ark. 69, 137 S. W. S68. 1S3 Ala. 386, 4S So. 164. *' Chesapeake &c. R. Co. v. Clowes, 93 Va. 189, 24 S. E. 833. 305 CARRIERS OF PASSENGERS. § 284 plaint; and in assessing damages you are authorized, in your best judgment, to award a fair and reasonable compensation for any physical pain or mental suffering that you believe the plaintifif suffered, and also as a punishment to the defendant, if the jury believe such damages should be awarded.^" (3) The court instructs the jury that the fact that a per- son is a trespasser in boarding a car does not lawfully expose him to ejection by unusual means, nor license the company or its servants unnecessarily to inflict upon him bodily injury ; and if you believe from the evidence that plaintiff was on the car as a trespasser, and you further believe from the evidence that the force used in ejecting him was excessive and a menace to life and limb, and you further believe that this excessive force caused the injury, then you will find for the plaintiff.®^ (4) The court instructs the jury that, although you may believe that the train upon which plaintiff was allowed to enter was not, under the rules of the company, allowed to stop at , ■ , yet, if you believe from the evidence that defendant by its servants or agents directed plaintiff to board said train, and that before reaching his destination the servants or agents of defendant ejected him from said train, then you are bound to find for the plaintiff." (5) The court instructs the jury that if you find for the plaintiff you will assess his actual damages at a nominal sum; and you are further instructed that if you believe from the evi- dence that the plaintiff was put off the train before reaching , and that the conductor in the presence of passengers used profane and insulting language toward the plaintiff at the time of putting him off, then you may add such amount as you may believe the circumstances justify in the way of punitive or ex- emplary damages, provided you believe he was wilfully and maliciously ejected from said train, said damages not to exceed the sum of $ .^^ "Birmingham R. &c. Co. v. Lee, "Distler v. Missouri Pac. R. Co. 1S3 Ala. 386, 45 So. 164. (Mo.), 147 S. W. 518. "Amato V. Sixth Avenue R. Co., "^Distler v. Missouri Pac. R. Co. 59 N. Y. St. 674, 29 N. Y. S. 51. (Mo.), 147 S. W. 518. 20— Branson's Inst. § 286 INSTRUCTIONS FORMS. 306 § 286. Expulsion of passengers from trains — Arrest of pas- senger at conductor's order. — The court instructs the jury- that it was the duty of the plaintiff to behave in a quiet and or- derly manner while a passenger on the train of the defendant and that it was the duty of the conductor to sustain order on said train, and if the plaintiff was acting in a disorderly manner on said train, the conductor could eject him from said train; and if the jury find that the plaintiff, while a passenger on said train, was acting in a disorderly manner and was threatened with expulsion from said train by the conductor, and that on account of the companionship of the plaintiff with other per- sons, who were also disorderly and riotous, the conductor could not properly make the attempt to expel the plaintiff from the train, as the plaintiff and his companions stated that they would resist any attempt to expel them from the train, then the con- ductor was justified in requesting the first police officer whom he could find to arrest the plaintiff ; and if the jury find that the police officer at the depot was the first police officer the conductor saw, and that the conductor used due diligence in procuring a police officer, and that the conductor directed the police officer to arrest the plaintiff for said disorderly conduct, the defendant is not liable for this arrest and the verdict of the jury must be for the defendant." § 287. Occupying dangerous position on car. — The court instructs the jury that if they believe from the evidence that the motorman or conductor knew, or could have known by the ex- ercise of reasonable care, that when the car was about to start off on its return trip that the said plaintiff occupied a danger- ous position for a child of tender years, that then it was the right of the said conductor and motorman not to start the car while the plaintiff was so occupying said position; and, if they believe from the evidence that they did so, negligence may be imputed to the defendant, if the jury believe that the accident was occasioned by said negligence; provided the jury shall be- " Richmond Trac. Co. v. Wilkinson, ington &c. Elec. R. Co. v. Quayle, 95 101 Va. 394, 43 S. E. 622. See Wash- Va. 741, 30 S. E. 391. 307 CARRIERS OF PASSENGERS. § 288 lieve from the evidence that the plaintiff exercised such a de- gree of care and caution as under the circumstances might rea- sonably be expected from one of his age and intelligence.^' §288. Injuries to passengers on mixed trains. — (1) The court instructs the jury that when a passenger takes passage on a mixed train, which carries both freight and passengers, such passenger assumes the ordinary risks and inconveniences that are incident to the travel on such trains. But the railway com- pany owes to such passenger the duty to exercise the highest degree of care consistent with the practicable operation of such train to protect the passenger from injury.^' (2) The court instructs the jury that if you should find from the testimony that the night freight train in question was usually made up and started from the place where it stood when the party having charge of the plaintiff attempted to go on board, and that the defendant company, its agents or servants had, previous to and about that time, carried such passengers in this night train to and from as went aboard of their own accord, or upon application to some person having charge of the train, collecting from such person the usual fare of passengers, and further find that the caboose, on the night in question and at the time the party having charge of the plaintiff went aboard, was open for passengers, you will be warranted in finding a ver- dict for plaintiff, if you still further find the absence of negli- gence upon the part of said party in the care bestowed upon the boy, and the existence of negligence at the time upon the part of the employes of the defendant having charge of the train.^' (3) The court instructs the jury that if plaintiff was riding in the caboose of defendant's freight train with the knowledge and permission, expressed or implied, of defendant's servants and agents in charge of the train, then he was a passenger within the meaning of the law, and the carrier owes to him "Baltimore &c. R. Co. v. Cain, 81 "Barker v. Ohio River R. Co., 51 Md. 87, 31 Atl. 801, 28 L. R. A. 688. W. Va. 423, 41 S. E. 148, 90 Am. St. "St. Louis &c. R. Co. V. Wright, 808. 105 Ark. 269, 150 S. W. 706. § 289 INSTRUCTIONS FORMS. 308 the same duty or care for his safety that it owes to passengers ordinarily so called/* § 289. Assault on passenger by employes. — The court in- structs the jury that if they find from the evidence to their reasonable satisfaction that the conductor assaulted and struck plaintiff while plaintiff was still on the car, or on the steps of the car, and that thereafter the conductor followed plaintiff and assaulted and beat him, the defendant is liable in this action, if they further find that the conductor, in first assaulting plain- tiff, was not doing so in response to an assault committed on him by plaintiff/' §290. Injuries to alighting passengers. — (1) The court instructs the jury that if a passenger is injured while alight- ing from a train, such passenger is not entitled to recover dam- ages against the railway company for such injuries, unless it is shown by a preponderance of the evidence that such injury was caused by the failure of the company to exercise that high degree of care that a very cautious and prudent person would exercise under the same circtimstances.^" (2) The court instructs the jury that it is for them to de- termine from the evidence whether defendant, prior to the acci- dent, could reasonably have foreseen that it might happen; that in determining whether defendant was guilty of negligence the jury must consider whether, prior to the accident, defendant had reasonable or probable ground to anticipate any accident at that point to a passenger properly descending step by step from the platform of the car to the station platform/^ (3) The court instructs the jury that if you find from the •^St. Louis &c. R. Co. V. Whitacre, call attention to this principle in a 103 Ark. 332, 147 S. W. 58. special charge, as giving undue prom- °° Alabama City &c. R. Co. v. Samp- inence to a rule of law. The review- ley, 4 Ala. App. 464, 58 So. 974. ing court says : "This action of the °°It was objected that, since the court was not fairly open to the ob- court had stated in its general charge jection." Rambie v. San Antonio &c. that the burden of proof was upon R. Co., 45 Tex. Civ. App. 422, 100 plaintiff to establish by a preponder- S. W. 1022. ance of the evidence the material alle- " Delamatyr v. Milwaukee &c. R. gations of his petition, it was error to Co., 24 Wis. 578. 309 CARRIERS OF PASSENGERS. § 29I evidence that on the day of , , the defendant was a carrier of passengers for hire by street railroad, and used the railway and car mentioned in the evidence for such purpose, and if they further find from the evidence that on said day the defendant's employes in charge thereof stopped the car men- tioned in the evidence a short distance from the station at , a station along said line of railway for the purpose of allowing plaintiff and other passengers to alight therefrom, if you find plaintiff was a passenger thereon, and that while said car was so stopped, if you so find, the plaintiff attempted to alight from said car and was in the act of so doing, and that defendant had carelessly and negligently suffered and permitted a cer- tain projection to be and remain on the step of said car at the place where passengers alight therefrom, and where plaintiff was attempting to alight therefrom, the heel of one of her shoes caught thereon, and she was thereby caused to fall from said car and upon the ground and was thereby caused to be injured, and if the jury further find from the evidence that the plaintiff while in her attempt to alight from said car was exercising ordinary care for her safety in doing so under the circum- stances shown in the evidence, then your verdict should be for the plaintiff.'^ § 291. Injuries to alighting passengers — Calling out sta- tion as invitation to alight. — (1) The court instructs the jury that if you believe from the evidence that D. was a passen- ger on the train, and that the brakeman called the station and opened the door of the car, and after this the train came to a stop and started up again without giving a reasonable time for D. to alight, and he was thus thrown from the train and killed, you should find for the plaintiff.*^ (2) The court instructs the jury that the calling of the sta- tion by the brakeman and the opening of the door of the car was an invitation to the passengers to get ready to alight, but was an invitation to alight only after the train had stopped, and if °' Brown v. Metropolitan St. R. Co., "^ Illinois Cent. R. Co. v. Dallas. 161 Mo. App. 236, 143 S. W. 561. ISO Ky. 442, ISO S. W. 536. ' 292 INSTRUCTIONS FORMS. 310 you believe from the evidence that the decedent was not knocked or thrown from the car by a negligent and unnecessary jerk of the train, as set out in No. , but voluntarily attempted to get off the train before it stopped, and was thus injured, or if he was not a passenger on the car, as set out in No. , you should find for the defendant.^* (3) The court instructs the jury that if you believe from the evidence that D. was a passenger on the train, as set out in No. , and that, as the train drew into the city of , the brakeman announced the station, and, after announcing the sta- tion, opened and left open the door of the car, and the train began to slacken its speed, and that thereupon D. arose from his seat preparatory to getting off the train, and went to the door of the car, and while he was there and the train was run- ning at a very slow rate of speed the train was negligently caused to make an unusual, unnecessary, and sudden jerk for- ward, with such force that D. was thrown or knocked from the platform and caused to fall from the train while exercising ordinary care for his own safety, as set out in No. , you will find for the plaintiff."^ § 292. Injuries to alighting passengers. — Duty to render assistance. — (1) The court instructs the jury that if you find that a very cautious and prudent person would, under the same or similar circumstances under which defendant's servants and employes were situated, have further assisted, or used other means in assisting, plaintiff's wife from the cars at , and if you shall further find that defendant's servants and employes failed to use such care in so assisting her, and that as the direct and proximate result of such failure, if any, plaintiff's wife fell to the ground and was injured, you will find for the plaintiff, unless you otherwise find under paragraph 2 of this charge.^" (2) The court instructs the jury that if it is necessary and proper that the railroad should furnish a stool or step for the " Illinois Cent. R. Co. v. Dallas, *" St. Louis Southwestern R. Co. v. ISO Ky. 442, ISO S. W. 536. Shipley (Tex. Civ. App.), 126 S. W. "Illinois Cent. R. Co. v. Dallas, 952. 150 Ky. 442, 150 S. W. 536. 311 CARRIERS OF PASSENGERS. §293 purpose of alighting from its trains, then the railroad must not only furnish such appliance, but must see that it is properly and safely placed, and in failing to do this would be guilty of negligence.*^ § 293. Injuries to alighting passengers — Reasonable op- portunity to alight in safety. — (1) The court instructs the jury that it is the duty of a railroad company to give a reason- ably sufficient time at its stopping places for its passengers to alight safely from their trains."^ (2) The court instructs you that if you find that the car was stopped for the purpose of enabling the plaintiff to alight, and that she was not afforded a reasonable time and oppor- tunity to alight with safety, and, while in the exercise of ordi- nary care for her own safety, she was injured as alleged in her petition, you would be authorized to find for the plaintiff.®* (3) The court instructs the jury that a passenger, in alight- ing from a car of a common carrier, is entitled to a reasonable time in which to get off the car after he has been given an oppor- tunity to do so; and if you believe from the evidence that the plaintiff was a passenger on a car of the defendant, and that the same was started after having been stopped, if you find it did stop, without allowing him such reasonable time in which to alight, then the defendant, the Railway Company, is liable for any injuries he may have received by reason of the car starting, provided you believe from the evidence that plain- tiff was in the exercise of reasonable and ordinary care to avoid injury to himself or was not guilty of contributory negli- gence as defined in these instructions.'" (4) The court instructs the jury that if you believe from the evidence defendant received and accepted the plaintiff as a passenger upon one of its street cars which it was then operat- " The charge "states a correct prin- "^ Florida R. Co. v. Dorsey, 59 Fla. ciple of law, to be applied by the jury 260, 52 So. 963. to the facts as determined by them." "' Savannah Elec. Co. v. Bennett, Singletary v. Seaboard Air Line R. 130 Ga. 597, 61 S. E. 529. Co., 88 S. Car. 565, 71 S. E. 57. "Lehane v. Butte Elec, R. Co., il Mont. 564, 97 Pac. 1038. §293 INSTRUCTIONS FORMS. 312 ing by its servants upon and in charge thereof, and that plaintiff was injured while a passenger of defendant, and while in the act of alighting from such car, by reason of the acts of the servants of defendant upon and in charge of said car operating the same failing to allow plaintiff a reasonable time to get off of said car, and causing or permitting said car to be suddenly started or jerked forward, then the defendant and its servants upon and in charge of said car operating the same were bound to exercise toward plaintiff, for his safety as a passenger on such car, in the respects referred to in the instructions, the highest reasonably practicable degree of care a very prudent person engaged in like business would exercise under similar circumstances to those disclosed by the evidence in this case.'^ (5) The court instructs the jury that it is the duty of rail- ways and their employes operating trains to stop at stations a sufficient length of time to permit passengers promptly to alight from the trains in safety. If plaintiff was traveling upon de- fendant's train, and defendant's employes failed to stop at the station long enough to enable plaintiff to alight promptly in safety, and while plaintiff, within proper time, was trying to alight, defendant company suddenly started the train, and that by reason thereon plaintiff sustained an injury, you will find for the plaintiff." (6) The court instructs the jury that the time required for a passenger to leave a train depends upon the circumstances of each particular case. Whether the stop on the day of this acci- dent was reasonably sufficient under the circumstances in evi- dence is a question for you to determine." (7) The court instructs the jury that if they further find from the evidence that the employes of defendant knew, or could have known by the exercise of reasonable care, the plaintiff was on said car, in a dangerous situation, considering his age and experi- ence and understanding, that then it was their duty to slow up sufficiently to permit said plaintiff to leave said car in safety, if " Setzler v. Metropolitan St. R. Co., "Florida R. Co. v. Dorsey, 59 Fla. 227 Mo. 454, 127 S. W. 1. 260, 52 So. 963. " St. Louis &c. R. Co. V. Price, 83 Ark. 437, 104 S. W. 157. 313 CARRIERS OF PASSENGERS. § 294 the same was in motion, and, if the said car had not been started, not to start same until said plaintiff had gotten to a place of safety ; and, if the jury believe from the evidence that the injury resulted to the plaintiff from the failure of said employes in either one of these particulars, they must find for the plaintiff; provided they believe from the evidence that the plaintiff exer- cised such a degree of care and caution as under the circum- stances might reasonably be expected from one of his age and intelligence/'^ § 294. Injuries to alighting passengers — Suddenly starting car while passenger in act of alighting. — (1) The court in- structs the jury that if you believe from the evidence that the defendant, on or about the day of , in the year , managed, conducted and operated a cable street railroad in a north and south direction along W. street in the city of , on which it carried passengers for hire, and that on or about said date plaintiff became a passenger upon a car, the motive power of which was an endless cable, on said railroad, then being managed, controlled and operated by defendant on its said street railroad by its servants and agents upon and in charge thereof, and paid his fare to be carried as a passenger thereon to N. and W. streets in said city, and that when the said car upon which plaintiff was a passenger as aforesaid ar- rived at the south side of N. street, it was stopped or slowed down so as to be almost stopped by defendant's servants and agents in charge of said car at the usual place for that purpose, to allow passengers to get on and off of said car, and that upon the stopping of said car or the slowing of the speed of said car so that it was almost stopped, for the purpose aforesaid, the plaintiff attempted to alight therefrom, and that in attempting to alight from the car under such circumstances, and in his conduct in so doing, he was exercising the same care and caution an ordinarily prudent person would exercise under similar cir- cumstances, and while he was in the act of so doing, the de- fendant, acting by and through its servants and agents upon "a Richmond Trac. Co. v. Wilkin- son, 101 Va. 394, 43 S. E. 622. § 294 INSTRUCTIONS FORMS. 3I4 and in charge of said car, carelessly and negligently, and with- out allowing plaintiff a reasonable time to get off of said car, and without any warning to plaintiff, caused or permitted said car to be suddenly started and jerked forward, whereby the plaintiff was thrown violently from said car to the pavement, and was thereby wounded, and the bones of his left leg near the hip were broken, and he was thereby disabled and rendered a cripple for life, then your verdict must be for the plaintiff.^* (2) The court instructs the jury that if you believe from the evidence that the plaintiff was a passenger upon one of defend- ant's street cars at the time and place in controversy; that the said car had stopped for the purpose of allowing passengers to alight therefrom; that the plaintiff attempted so to alight; that while she was in the act of so doing the defendant negligently started said car forward with a sudden jerk or movement, thereby throwing plaintiff to the pavement and injuring her — then the plaintiff would be entitled to recover, unless it has been shown hy the evidence that plaintiff was herself guilty of negligence "which approximately contributed to her injury, in which latter case plaintiff would not be entitled to recover.'^ (3) The court instructs the jury, as matter of law applicable to this case, that it was the duty of the defendant, as a common ■carrier of persons for hire, when it stopped its cars, whether in consequence of a signal from some passenger on the car or not, not to start the same again while the passengers were in the act of getting off the car, if the fact that its passengers were in the act of alighting was known to the person having charge of the same, or would be known to such person by the exercise of due care and caution in the discharge of his duties, and as a common carrier of passengers defendant should give its passengers a rea- sonable opportunity to alight from its cars before starting the same, when the fact that its passengers desire to alight is known, or by the exercise of due care and diligence would be known to the person in charge of the car ; and if the jury believe from the evidence and the circumstances proven in this case that on the day of , in the year , the plaintiff was a passenger' " Setzler v. Metropolitan St. R. Co., " Indianapolis Trac. &c. Co. v. .227 Mo. 454, 127 S. W. 1. Miller, 40 Ind. App. 403, 82 N. E. 113. 315 CARRIERS OF PASSENGERS. §294 upon one of the street cars of the defendant operated by it on M. and S. streets, yvithin the city of C, and that while such car of defendant in which plaintiff and others were being conveyed as passengers was driven along S. street, north of R. street, it was stopped for the purpose of allowing its passengers, among whom was the plaintiff, to get off, or had stopped for any other purpose with or without a signal to stop, and when so stopped the passengers were in the act of getting off said car, with the knowledge of the driver of said car ; and if you further find, from the evidence, that the plaintiff, at this time and place, the said car being stopped and not in motion (if you find from the evidence that such was the fact), in the exercise of due care and diligence on her part, was also in the act of alighting from said car, and that the defendant, by its driver, started the said car while plain- tiff was so getting off, and before she had a reasonable time to do so, and thereby threw the plaintiff down upon the street, and by reason thereof the neck of her thigh-bone was broken or in- jured, without negligence or fault on her part, and by reason of negligence or carelessness on the part of the driver of the car (if you find, from the evidence, he was guilty of carelessness or negligence in starting the car), then the defendant would be lia- ble for the damages thereby sustained by plaintiff and the ver- dict should be for the plaintiff, unless the jury further find, from the evidence, that the release read in evidence was executed by plaintiff under an agreement which she was, at the time of mak- ing it, capable of understanding and intelligently consenting to, or that, after being fully informed thereof, she ratified it or failed to return the consideration paid to her (if the jury believe, from the evidence, any was paid to her), and thereby avoid said release." (4) The court instructs the jury that if you find from the evi- dence that the bell signal which the plaintiff claims the con- ductor gave to the motorman when the conductor boarded de- fendant's car, as the car was crossing the railroad tracks, was taken by the motorman to mean that the conductor had boarded the car after making the crossing, and that the speed of the car was not increased in response to any such signal, your verdict '" Chicago West Division R. Co. v. Mills, lOS 111. 63. § 295 INSTRUCTIONS FORMS. 316 then would be for the defendant. That is, if the motorman did not, as a matter of fact, increase the speed of the car after the bell was rung, so as to produce a jerk or motion of the car that threw the plaintiff to the ground, but simply considered the bell evidence to him that the conductor was on the car, the plaintiff would not be entitled to recover. It is a question of fact for you to determine from all the evidence in the case whether he did or did not increase the speed and the increasing speed produce a jerking motion of the car.^' § 295. Injuries to alighting passengers — Effect of unau- thorized signal to start. — The court instructs the jury that if they believe, from the evidence, that some person not in the employment of the defendant company rang the bell which started the train at the time in question, still that fact will not ex- empt the defendant company from liability in this case, pro- vided the jury believe from the evidence that the conductor could, by use of due care and diligence, have countermanded the unau- thorized signal for starting the train in time to have prevented any injury to plaintiff if he, the conductor, had exercised due care and diligence in the discharge of his duties, and provided the jury believe from the evidence that the plaintiff, at the time in question, was in the exercise of reasonable care and diligence for his own safety.'* § 296. Injuries to alighting passengers — Contributory neg- ligence. — (1) The court instructs the jury that, as a matter of law, when a passenger, through the negligence of a railroad company, is placed in a situation apparently so perilous as to render it prudent for him to leap from the train, whereby he is injured, he will be entitled to recover damages, although he would not have been hurt if he had remained in his seat.'* (2) The court instructs the jury that if you believe from the evidence that the plaintiff jumped from the street car after it had passed from a place of danger, or apparent danger, to a " Orth V. Saginaw Val. Trac. Co., '" Prescott &c. R. Co. v. Morris, 92 162 Mich. 353, 127 N. W. 330. Ark. 365, 123 S. W. 392. ™ North Chicago St. R. Co. v. Cook, 145 111. 551, 33 N. E. 958. 317 CARRIERS OF PASSENGERS. § 296 place of safety, and that a person of ordinary intelligence, under like circumstances, would have known that the danger was past and would not have jumped from the car at the time plain- tiff did, you should find for the defendant.*" (3) The court instructs the jury that if they find that the plaintiff attempted to alight from the train when the same was moving at such a rapid rate of speed as to make the danger of alighting therefrom obvious to an ordinarily prudent, careful and sensible person, and shall further find that she was not com- pelled to do so by the agent of defendant, but did so of her own free will and initiative, then they must find that she was guilty of negligence, and if this contributed to her injury as a proximate cause thereof, without which it would not have occurred, then she can not recover.'^ (4) The court instructs the jury that the fact that the plain- tiff undertook to alight from the car at a time when the car was still in motion does not necessarily make her guilty of contrib- utory negligence. As to whether she could alight from the car at the time she undertook to do so with safety, is a question of fact for you, gentlemen, to determine from all the facts and cir- cumstances in the case. If you find from the evidence, that, at the time she undertook to alight from the car, she could have done so with safety, by the exercise of due diligence and care, then she would not be guilty of contributory negligence, even though you find that the car had not come to a full stop but was still moving.*- (5) The court instructs the jury that if they believe from the evidence that the plaintiff, at the time of the starting of defend- ant's car, was on said car, not as a passenger or with the consent of the company, or that he remained there after instructed to get off by the conductor, but was there without the knowledge or " Stephenson v. Southern Pac. Co., ^ Wabash River Trac. Co. v. Ba- 102 Gal. 143, 34 Pac. 618. ker, 167 Ind. 262, 78 N. E. 196. For '' In refusing this requested instruc- similar instructions on injuries sus- tion, the trial court committed error, tained in boarding car, see Maxey v. The request "contained a correct Metropolitan St. R. Co., 9S Mo. App. statement of law and should have 303, 68 S. W. 1063; Doering v. Met- been charged." Dobson v. Seaboard ropolitan St. R. Co., 42 Misc. 192, 85 Air Line R. Co., 90 S. Car. 414, 73 N. Y. S. 400. S. E. 87S. §297 INSTRUCTIONS FORMS. 318 consent of the company, or its employes, in the exercise of rea- sonable care upon their part, and that the plaintifif jumped from the defendant's car when it reached the pile of sand or dirt be- cause he knew he had no right on said car, or because he had been told by the said conductor to get off the said car before it started, and was thereby injured, he can not recover in this case/' .(6) The court instructs the jury that it was incumbent upon the decedent to exercise such care for his own safety as might be reasonably expected of a person of ordinary prudence situated as he was, and if you believe from the evidence that he failed to do this, and but for such want of care on his part he would not have been injured, you should find for the defendant/* § 297. Injuries to alighting passengers — Jumping from train at direction of employes. — ^(1) The court instructs the jury that if you believe, from the evidence, that the plaintiff was a through passenger from St. L. to N. Y., in the state of N. Y., by way of B., in said state of N. Y., and that on , , the through sleeping car from St. L. to N. Y. on which plaintiff was being carried as such passenger reached the E. station at B., in the progress of said journey to the city of N. Y., and that said station was then managed and controlled by defendant ; and if you further believe from the evidence that said car arrived at said B. station at of said day on track No. , and was to leave said station on the way to N. Y. at over defend- ant's main line, the Railroad, and that plaintiff during said interval of time between and visited the restaurant in said station to obtain refreshments, and upon his return to the train shed of said station, before discovered that the said sleeping car on which he had been traveling as a passenger as aforesaid was no longer standing upon said track No. on which plaintiff had left it, and that plaintiff did not know where said sleeping car was, and thereupon endeavored to find the said car, and in so doing observed a train headed toward the east upon track No. in said station, and that said train con- " Richmond Trac. Co. v. Wilkinson, " Illinois Cent. R. Co. v. Dallas, ISO 101 Va. 394, 43 S. E. 622. Ky. 442, 150 S. W. 536. 319 CARRIERS OF PASSENGERS. §29/ tained several sleeping cars and had the general appearance of a through train, and that, on asking the porter on one of said sleeping cars of said train, plaintiff was told by him that said train was the train for N. Y., and that plaintiff thereupon and in con- sequence of said statement of the porter, got on said train, be- lieving it to be the train of which said sleeping car on which he rode, from St. L. was a part, and that afterward plaintiff was in- formed by said porter that said train was the W. S. train and that he then was directed by said porter to jump off, and that plaintiff then stepped to the platform adjacent to track No. of said station from the step of said sleeping car of said W. S. train while the latter was in motion, and in so doing plaintiff slipped upon said platform and fell underneath said train and was run over, whereby he received personal injury in the loss of part of his leg; and if you further find that said injury was so received by plaintiff as a direct consequence of negligence on the part of defendant as defined in other instructions, and that plaintiff was not guilty of any want of ordinary care on his part contributing to his said injury, in so stepping from said W. S. train — ^then your verdict should be for the plaintiff .*° (2) The court instructs the jury that if they believe from the evidence that the plaintiff was injured by jumping from a mov- ing electric car of the defendant, whilst being propelled through the streets of the city of , and that the plaintiff's act of jumping from the car was caused by the orders of the defend- ant's motorman or conductor in charge of the car, given while the car was in motion, then they must find for the plaintiff, pro- vided the jury shall believe that the plaintiff, by reason of his age and want of judgment and discretion, was unable to exer- cise care and caution to resist the orders of the defendant's mo- torman or conductor. The jury must believe from the evidence that the conductor ordered the plaintiff to get off, while the car was moving, in such a threatening manner as to intimidate the "Newcomb V. New York Cent. &c. Ray, 101 Tenn. 1, 46 S. W. SS4. Lia- R. Co., 182 Mo. 687, 81 S. W. 1069. bility for negligently starting car, see Carrier's liability for acts of em- Maxey v. Metropolitan St. R. Co., 9S ployes, see Louisville &c. R. Co. v. Mo. App. 303, 68 S. W. 1063. § 298 INSTRUCTIONS FORMS. 320 plaintiff, considering his age and capacity, and thereby caused him to jump from said car/'' § 298. Injury after leaving car. — The court instructs the jury that if you beheve from the evidence that the car was not started up while the plaintiff H. was in the act of alighting, and that she alighted safely from said car, and after she had alighted she turned and walked away and stepped into a hole in the street a step or two away from the place where she had alighted, and that she was thereby caused to fall, then you will return a ver- dict for the defendant.^^ § 299. Presumption of negligence in operation of cars. — The court instructs the jury that if, after a consideration of all the evidence, you find that plaintiff was injured, as alleged, by the running of the defendant's cars, but the evidence is equally balanced in your minds between negligence and freedom from negligence on the part of the defendant, your verdict must be for the plaintiff.^' §300. Burden of proof of negligent operation. — (1) The court instructs the jury that the charge of negligence made against the defendant in the plaintiff's petition is that the motor- man of defendant's car slowed down the said car to a stopping point, inducing plaintiff to believe that said car had stopped to receive him as a passenger, and that while plaintiff was in the act of boarding said car the same was suddenly, and in violation of the ordinances of the city of St. L., started, throwing plain- tiff to the ground and injuring him. With respect to the fore- going charge of negligence you are instructed that the burden is upon the plaintiff throughout the whole case of establishing to ^° Richmond Trac. Co. v. Wilkin- plaintiff was injured by the running son, 101 Va. 394, 43 S. E. 622. See of the defendant's cars, whether the Washington &c. Elec. R. Co. v. injury occurred in the manner set Quayle, 95 Va. 741, 30 S. E. 391. forth in the declaration or not, since " San Antonio Trac. Co. v. Haus- the charge permits a recovery only kins (Tex.), 148 S. W. 1101. if the jury find the defendant was °* This instruction "is not subject to injured and damaged as alleged." the criticism made, that it permits a Louisville &c. R. Co. v. Croxton, 63 recovery upon proof merely that Fla. 223, 58 So. 369. 321 CARRIERS OF PASSENGERS. § 3OO your satisfaction, by the preponderance or greater weight of the testimony, that the defendant's car did slow down, either for the purpose of receiving plaintiff as a passenger, or to so slow a speed as to cause the plaintiff to believe that it was slowing down for the purpose of receiving him as a passenger, and that the same was so suddenly started while plaintiff was in the act of boarding the same as to cause him to be injured ; and unless the plaintiff has so proven he is not entitled. to recover, and your verdict must be for defendant.*® (2) The court instructs the jury that if you find and believe from the evidence that the plaintiff, G. D. F., boarded one of the cars of defendant in , , to be carried by it as a passenger from street to its depot at avenue, on or about the day of , , and that said car and train was carelessly and negligently permitted to rapidly run down a descent on defend- ant's road with unusual speed and force, that the car was de- railed and turned over, and that plaintiff received injuries by reason thereof, without fault on his part, then the burden of proof is shifted upon the defendant to show to the satisfaction of the jury that the accident occurred through no fault, negli- gence, license, or carelessness of defendant's agents or servants, and unless it is so shown the jury should find a verdict for plain- tiff.'" (3)' The court instructs the jury that the burden is on the plaintiff to establish the truth of the allegations in the declara- tion by a preponderance of the testimony, — that is to say, in a case of this character, it is incumbent upon the plaintiff to estab- lish the fact that he was a passenger upon the car and was in- jured; and when he has established that by a preponderance of the evidence, or made it appear by any admissions in the plead- ings satisfactory to you, as to the fact that he was a passenger ™ Maguire v. St. Louis Trans. Co., 162 Mo. 75, 62 S. W. 452. Negligence 103 Mo. App. 459, 78 S. W. 838. For as proximate cause, see Godwin v. similar instructions, see Maxey v. Atlantic Coast Line R. Co., 120 Ga. Metropolitan St. R. Co., 95 Mo. App. 747, 48 S. E. 139; Anderson v. Union 303, 68 S. W. 1063; Doering v. Met- Terminal R. Co., 161 Mo. 411, 61 S. Topolitan St. R. Co., 42 Misc. 192, 85 W. 874 ; Pier v. Chicago &c. R. Co., N. Y. S. 400. 94 Wis. 357, 68 N. W. 464. " Feary v. Metropolitan St. R. Co., 21 — Branson's Inst. § 300 INSTRUCTIONS FORMS. 322 and was injured, or established it by evidence to a reasonable and moral certainty, then the law shifts the burden, and it is in- cumbent upon the defendant to establish, by a preponderance of the evidence, one of two facts, — either that it was without neg- ligence, or that the plaintiff could have avoided the consequence of the negligence by the exercise of ordinary care.'^ (4) The court instructs the jury that if you believe from the evidence that plaintiff received any injury substantially as alleged by her, and you further find from the evidence that prior to the time of receiving such injury, if any, she had received injuries from being thrown from a street car, and you should be unable to determine from the evidence whether her present condition re- sults from said former injuries or the accident complained of, you will let your verdict be for the defendant as to such present injuries, if any.'^ (5) The court instructs the jury that defendant is not re- quired to prove what caused the train to get beyond the control of the trainmen; and even if the jury can not find from the evi- dence the exact cause, or if such cause is unknown and has not been shown, still if, after considering all the testimony in the case, not only that offered by defendant, but also that offered by plaintiff, you find that there was not any negligence on the part of defendant of the character submitted to your consideration, then the defendant must have the verdict, even though F. was its passenger, and received his injury without any fault upon his part."' (6)' The court instructs the jury to find for the defendant, unless you find from a preponderance of the evidence that plain- "» Macon Consol. St. R. Co. v. " Feary v. Metropolitan St. R. Co., Barnes, 113 Ga. 212, 38 S. E. 756. 162 Mo. 75, 62 S. W. 452. Negli- For instructions on relation of pas- gence as the proximate cause, see senger and carrier, see Greenfield v. Lieuallen v. Mosgrove, 37 Ore. 446, Detroit &c. R. Co., 133 Mich. 557, 95 61 Pac. 1022; Conrad v. Ellington, N. W. 546. Liability for personal in- 104 Wis. 367, 80 N. W. 456; Conner juries, see Comerford v. New York v. Citizens St. R. Co., 146 Ind. 430, &c. R. Co., 181 Mass. 528, 63 N. E. 45 N. E. 662; Godwin v. Atlantic 936; Georgia R. &c. Co. v. Tice, 124 Coast Line R. Co., 120 Ga. 747, 48 Ga. 459, 52 S. E. 916. S. E. 139. " Texas &c. R. Co. v. Jones (Tex. Civ. App.), 138 S. W. 209. 323 CARRIERS OF PASSENGERS. § 301 tiff was injured in all or some of the respects as alleged by him in his petition, and that such injury or injuries, if any, were di- rectly and proximately caused by a sudden move or jerk of the car in which plaintiff was a passenger; and if you further be- lieve that a very careful and prudent person, under the same or like circumstances, would not have moved or jerked said car, if you find it was so moved or jerked.'* (7) The court instructs the jury that the burden is on the plaintiff to show by a greater weight of the evidence that he was injured by the negligence of the defendant as charged in the com- plaint at a time when plaintiff occupied the relation of passen- ger to the defendant. The burden is on the defendant to show by the greater weight of the evidence that the plaintiff was want- ing in ordinary care for his own safety, unless that is shown by the plaintiff's own proof." § 301. Violation of ordinances as to stopping places for street cars. — The court instructs the jury that at the time said R. W. M. was injured the city ordinance introduced in evi- dence imposed upon its servants, agents, and employes of the de- fendant, while running, conducting, or managing the street car in question, the following duties: That they should stop cars going eastward on M. avenue on the east side of E. avenue for taking on passengers; that they should bring cars going east- ward to a full stop on the east side of E. avenue at the inter- section of E. avenue and M. avenue whenever requested, signaled, or motioned by any person standing at the southeast corner of the intersection of said M. and E. avenues desiring to board such cars, and in every instance to keep such cars sta- tionary for a reasonable length of time to enable such persons desiring to board such cars safely to board such cars. And if the jury believe from the evidence that the agents, servants, and employes of the defendant, while running, conducting, or man- aging said street car upon the occasion referred to, failed to per- . form any one or more of the duties specified in this instruction, such failure was negligence. And if you believe from the evi- "' Missouri &c. R. Co. v. Coker " St. Louis &c. R. Co. v. Whitacre, (Tex. Civ. App.), 143 S. W. 218. 103 Ark. 332, 147 S. W. 58. 8 3°! INSTRUCTIONS FORMS. 324 dence that in consequence of such neghgence in any one or more of the particulars hereinabove mentioned the said R. W. M. re- ceived the injuries which are complained of in his petition herein, your finding should be for the plaintiff, unless you further be- lieve from the evidence that the said R. W. M. was guilty of neg- ligence which contributed to the injury; and the burden of prov- ing contributory negligence on the part of said R. W. M. rests on the defendant, and, unless the defendant has proven such con- tributory negligence by a preponderance of the evidence, you can not find for the defendant on that ground.*^ "Maguire v. St. Louis Trans. Co., 103 Mo. App. 459, 78 S. W. 838. CHAPTER XXXIIL CAUTIONARY INSTRUCTIONS. Section Section 302. Instructions as law of the case. 309. Consideration to be given to re- 303. How instructions are to be con- marks and arguments of coun- strued by jury. seL 304. Jury as judges of facts. 310. Duty to avoid prejudice against 305. Jury as judges of law in juris- corporation as party. dictions allowing that practice. 311. Care to be given to consideration 306. Duty to base verdict on evidence of testimony concerning the adduced. verbal statements of others. 307. Right to disregard evidence be- 312. Consideration of demands made lieved to be untrue. in pleadings. 308. Duty to avoid speculations as to 313. Duty to exert efforts to avoid testimony. disagreement. § 302. Instructions as law of the case. — (1) The court in- structs the jury that when you were impaneled, you took an oath to well and truly try each cause submitted to you during the pres- ent service and a true verdict to make according to the law as given you in charge and the opinion you entertain of the evi- dence produced to you, to the best of your skill and knowledge, without favor or affection to either party. You are here to try this case under the law and the evidence produced before you. You should look at the evidence, and, applying the law to it, seek to reach a verdict which shall speak the truth of the case and shall be in accordance with the law and evidence, influenced by no favor or affection for either party. The law as given you in charge from the bench by the court you are bound to receive as being a correct exposition of the law. The jury are not the judges of the law in a civil case in any such sense as to authorize them to set up any opinion on their part as to what the law is, in conflict with or as overriding the law as given them from the bench. You receive the law as charged you from the bench as being 325 § 302 INSTRUCTIONS FORMS. 326 correct law. The facts on any contested issues of fact you de- termine from the evidence. The court charges you the law which he deems apposite and appropriate to give you in charge ; but he does not express or intimate to you, and does not intend throughout this charge to express or intimate to you, any opin- ion as to what are the facts on any question of contested facts or on any issue of fact. The facts you must determine from the evidence ; the law you will receive from the court.^ (2) The court instructs the jury that the instructions given to the jury by the court must be accepted by them as the law gov- erning this case. The jury will not be justified in finding a ver- dict contrary to the law as laid down in the instructions given by the court in this case.^ (3) The court instructs the jury that there are obligations upon the court and upon the jurors in the trial of a case. The obligation on the jury is under the solemn oaths they take to find a true verdict according to the opinion they entertain of the evi- dence produced to them without favor or affection to either party and according to law as given in charge by the court. The law imjposes upon the judge the solemn duty to exercise his best and most impartial skill and ability in giving you the law. Now I mention this feature of the matter particularly because it is en- tirely impossible for a jury to deliver a true, conscientious, and proper verdict in a case where they do not listen to the charge of the court. It is not only a matter of duty, but it is a matter of respect to the judge, that the jurors will do their best to under- stand the law as he gives it in charge. You understand the law is a very difficult proposition; lawyers don't understand it per- fectly, and courts conscientiously differ about what it is. But you must take the law as given you by the court. The responsi- bility of finding the truth of a case rests upon your consciences; the responsibility of giving you the true law of a case rests on mine. In the nature of things in considering the law as given you by the court, it is well not to pick out any isolated parts of the law as given you, but to try to recollect the whole charge, and see how one part of it is related to another, because it would ^Akridge v. Noble, 114 Ga. 949, 41 ^Chicago &c. R. Co. v. Burridge, S. E. 78. 211 111. 9, 71 N. E. 838. 327 CAUTIONARY INSTRUCTIONS. § 304 be impossible for the judge to give you in a paragraph, in a sen- tence, or a page all of the law that would relate to and be ap- plicable to a case of this kind.^ § 303. How instructions are to be construed by jury. — The court instructs the jury that you are to try the question in the case submitted to you upon the testimony introduced upon the trial, and upon the law as given yoti by the court in these instruc- tions. The court, however, has not attempted to embody all the law applicable to the case in any one of these instructions, but in considering any one instruction you must construe it in the light of and in harmony with every other instruction given, and, so considering and so construing, apply the principles in it enunci- ated to all the evidence admitted upon the trial.* § 304. Jury as judges of facts. — The court instructs the jury that they are the sole judges of the questions of fact in this case, and the court does not, by any instructions given the jury in this case, intend to instruct the juiy how they should find any question of fact in this case.^ (2) The court instructs the jury that if any one of your num- ber is not reasonably satisfied from the evidence that the plain- tiff is entitled to recover, you can not find a verdict for plain- tiff.«» (3) The court instructs the jury that you are not to allow yourselves to be influenced by any opinion which you may think I have formed upon any facts in this case. I have not intended to express any opinion ; and if you should have gathered that I have any opinion whatever on any fact, you will disregard that, because you are the sole judges of the facts, and my opinion is not to be taken by you.^"" 'Jackson v. Seaboard Air Line R. one paragraph of the charge, to the Co., 140 Ga. 277, 78 S. E. 10S9. neglect of some other on the same The Supreme Court, in its opinion, subject." Lampman v. Bruning, 120 sets out the above instruction in or- Iowa 167, 94 N. W. 562. der, and the court says, "to commend » South Chicago City R. Co. v. Mc- the practice not only of cautioning Donald, 196 111. 203, 63 N. E. 654. the jurors of their obligation to fol- ''a Travis v. Louisville &c. R. Co. low the instructions of the court, but (Ala.), 62 So. 851. of guarding them against being mis- ''b Stokes v. Morning Journal Assn., led by giving undue importance to 72 App. Div. 184, 76 N. Y. S. 429. § 305 INSTRUCTIONS FORMS. 328 § 305. Jury as judges of law in jurisdictions allowing that practice. — (1) The court instructs the jury that this pro- vision of the constitution does not place the jury above the law, or confer upon them the lawful right to decide simply as they see fit, regardless of the law. Under the constitutional law, if the jury can say on their oaths that they know the law better than the court does, they have the right to do so ; but, before assum- ing so solemn a responsibiHty, they should be sure that they are not acting from caprice or prejudice; that they are not con- trolled by their will or wishes, but from a deep and confident conviction that the court is wrong and that they are right. Be- fore saying this on their oaths, it is their duty to reflect whether, from their habits of thought, their duty and experience, they are better qualified to judge of the law than the court. If, under all those circumstances, they are prepared to say that the court is wrong in its exposition of the law, the constitution has given them that right.* (2) The court instructs the jury that you may determine the law for yourselves, and by that is not meant that you have a right to set aside the law, and make your own law. You deter- mine the law as it is enacted by the legislature of this state, and considered and interpreted by the higher courts of record, and in that way you have a right to determine the law for yourselves, but not to make your own law."* §306. Duty to base verdict on evidence adduced. — (1) The court instructs the jury that you must remember that it is important in many ways as bearing upon this class of cases in the future ; to some extent it is a precedent, and you should be very careful to follow out and determine this case, not from mat- ters outside of what you have listened to on the witness stand, but what you have heard here in the way of testimony and the law, and the instructions given to you by the court in this case.' 'People V. Seeley, 139 Cal. 118, 72 "aLeseuer v. State, 176 Ind. 448, Pac. 834. See also People v. Crespi, 95 N. E. 239. lis Cal. 50, 46 Pac. 863; People v. 'Anthony v. Cass County Home Sherlock, 166 N. Y. 180, 59 N. E. 830; Tel. Co., 165 Mich. 388, 130 N. W. State V. Heacock, 106 Iowa 191, 76 N. 659. W. 654. 329 CAUTIONARY INSTRUCTIONS. § 306 (2) The court instructs the juiy that in determining any of the questions of fact presented in this case, the jury should be governed solely by the evidence introduced before them. The jury have no right to indulge in conjectures or speculations not supported by the evidence.' (3) The court instructs the jury that it is their duty to find and determine the facts of this case from the evidence, and, having done so, then to apply to such facts the law as stated in these instructions.® (4) The court instructs the jury that it is your duty as jurors to try this case as to the facts upon the evidence produced upon the witness stand and the law as given you in these instructions by the court.^" (5) The court instructs the jury that you should find your verdict in accordance with what you honestly believe to be the truth of the case, without regard to whether it is in favor of the plaintiff or the defendant. You are here to administer justice, based upon the truth of the case, under the law — the truth of the case as you find it from the evidence." (6) The court instructs the jury to consider the whole case ' under the evidence and law as herein given you and return such a verdict as you think right.^^ (7) The court instructs the jury that the oath administered to each of you when impaneled was that you would a true ver- dict render according to the law as it may be given you in charge by the court, and to the evidence submitted to you under the rulings of the court. Hence you are instructed that in con- sidering your verdict you must not receive or consider any testi- mony other than that now before you.^^ (8) The court instructs the jury that in this case he has not expressed, and does not in any of these instructions express, any opinion on the facts of the case, nor upon the credibility or 'Ramsey v. Burns, 27 Mont. 154, '"Atlantic Coast Line R. Co. v. 69 Pac. 711. Jones, 132 Ga. 189, 63 S. E. 834. ' North Chicago St. R. Co. v. Well- " McKenna v. Hoy, 76 Iowa 322, ner, 206 111. 272, 69 N. E. 6. 41 N. W. 29. "Koshinski v. Illinois Steel Co., "International Harvester Co. v. 231 111. 198, 83 N. E. 149. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 93. 8 Z'^7 INSTRUCTIONS FORMS. 33O want of credibility of any witness. The facts must be decided by the jury from the evidence which is received in open court. Offered testimony, to which objection was sustained, or which was stricken out by order of the court, is not before the jury and should not be considered in arriving at your verdict. State- ments of counsel for either side, if any, which are unsupported by the testimony, or which are irrelevant to this case, should not be considered. The instructions given you by the court are to be considered as a series. The court has not expressed an opinion on the facts, and has not expressed an opinion on the credibility or character of any witness, and the court has no right to do so, and if the jury overheard anything said between the court and counsel in discussing questions of law or other- wise, the jury should not consider anything but the evidence in- troduced before them and the law as laid down in the instruc- tions of this court.^* § 307. Right to disregard evidence believed to be untrue. — The court instructs the jury that they are not bound to believe anything to be a fact simply because a witness has stated it to be so, provided the jury believe, from all the testimony, that such a witness is mistaken or has testified falsely .^^ § 308. Duty to avoid speculations as to testimony. — The court instructs the jury that you are to try and determine this case according to the evidence produced and submitted to you in open court on the trial, and the law as given you in charge by the court in these instructions, and upon nothing else. You will not indulge in any speculation or suppositions concerning what any witness or witnesses might have testified to had they been permitted to testify, when they were not, but you will consider the testimony as it is, and only as it is, in the record.^* "The second sentence of this in- timony," as the concluding sentence struction, as given, was : "The facts directs the jury "'not to consider any- must be decided by the jury from thing but the evidence introduced be- the testimony which is received in fore them,'' etc. Fitzgerald v. Ben- open court." It was objected that ner, 219 111. 485, 76 N. E. 709. the word "testimony" included only "Devaney v. Otis Elev. Co., 251 oral evidence. The reviewing court, 111. 28, 95 N. E. 990. however, held the instruction unex- "This instruction, given in an ac- ceptionable even with the word "tes- tion for breach of promise of mar- 331 CAUTIONARY INSTRUCTIONS. §309 § 309. Consideration to be given to remarks and argu- ments of counsel. — (1) The court instructs the jury that if, in putting in the evidence, or in argument, counsel for either party has made any statement in reference to the facts in this case not based upon the evidence, the jury should wholly disregard such statement." (2) The court instructs the jury that this case must be de- cided upon the testimony which has been detailed upon the wit- ness stand. Statements made by counsel in arguments to the court upon the evidence or arguments to you, as to what the evi- dence is, are not to be considered as evidence by you unless it corresponds with your memory of the evidence as you heard the witness detail it.^* (3) The court instructs the jury that while it is the duty and the right of counsel to address you, and explain and elucidate the testimony, the better to enable you to understand the ques- tions which you are to decide, yet, if counsel inadvertently mistake the evidence, you are to follow the evidence, and not the statement of counsel in arriving at the conclusions as to the an- swers to be given in this case.^* riage, had reference to plaintiff's case was : "If, in putting in the evi- failure to introduce her physician and dence, or in argument, counsel for to her objection to the testimony of either party has made any statement her former lawyer and her physician, not based upon the evidence, the jury "This instruction," says the Supreme should wholly disregard such state- Court of Iowa, "was correct. If one ment." It was objected that the word must, upon penalty of having a pre- "statement," where it first appears, sumption raised against him, intro- should be followed by the words, "in duce his lawyer or physician, the stat- reference to the facts in this case," utes forbidding them from testifying or other words of similar meaning, are of no significance. Of course. The reviewing court, while not con- the ordinary rule is that if one does demning the instruction, says that the not produce testimony within his con- instruction would have stated the law trol, or prevents the use of such testi- with greater accuracy had it been mony, the presumption arises that modified as indicated. North Chi- such testimony, if produced, would cago Street R. Co. v. Wellner, 206 be adverse to him. But this rule does 111. 272, 69 N. E. 6. not apply to privileged communica- ^Thomas v. Foss, SI Wash. 250, tions for reasons too obvious to men- 98 Pac. 663. tion." Lauer v. Banning, 1S2 Iowa " Mullen v. Reinig, 72 Wis. 388, 39 99,^ 131 N. W. 783. N. W. 861. ^' The instruction as given in this 8 3IO INSTRUCTIONS FORMS. 332 § 310. Duty to avoid prejudice against corporation as party. — The court instructs the jury that it is their duty to consider this case in all its bearings, the same as they would a case between two private citizens. The ■ defendant corporation is entitled to the same fair and unprejudiced treatment in courts of law as an individual would be under like circumstances. In considering and deciding this case, the jury should look solely to the evidence for the facts and to the instructions of the court for the law of the case and find their verdict accordingly, with- out any reference as to who is plaintiff or who is defendant.^" § 311. Care to be given to consideration of testimony con- cerning the verbal statements of others. — You are instructed that testimony with regard to verbal statements should be re- ceived with great caution. The evidence, consisting, as it does, in the mere repetition of oral statements, is subject to much im- perfection and mistake, in consequence of the person speaking not having clearly expressed his own meaning, or in consequence of the witness having misunderstood him. It frequently hap- pens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement com- pletely at variance with what the person in fact did say. This kind of testimony should be scanned closely. Where the pre- cise words are shown and proved, by intelligent and reliable wit- nesses, they often lead to satisfactory conclusions. Where a wit- ness can only give what he thinks is the substance of what was said, the weight to be given to such testimony depends largely upon the strength of memory and intelligence of the witness.^^ § 312. Consideration of demands made in pleadings. — (1) The court instructs the jury that if, under all the evidence and all of the instructions of the court, your verdict should be for the plaintiffs and against the defendant, then it will be necessary for you to assess and write into that verdict the amount of dam- ages caused proximately to (name of person killed) by the '"Star ferewery Co. v. Hauck, 222 =" Ellis v. Republic Oil Co., 133 III. 348, 78 N. E. 827, 113 Am. St. Iowa 11, 110 N. W. 20. 420. 333 CAUTIONARY INSTRUCTIONS. §313 acts, if proved, of the hoisting engineer. In determining this amount, you are Hmited to a sum of money which would Iiave compensated (name of person killed) for the pain and suf- fering of mind and body which the injuries caused (if any such pain and suffering were caused), between the time that he was injured and the time he died, if he survived the injuries for any length of time, and to the further sum that would have com- pensated him, unless you find that death was instantaneous, for the impairment, if any, which was caused by the injuries, of his capacity to earn money in the future if he had not been injured. The amount sued for and claimed in the complaint of dol- lars must not be to you any criterion in determining the amount of your verdict, if you do render any, in favor of the plaintiffs, but you are instructed that in no event shall your verdict be in excess of the amount of dollars. ^^ (2) The court instructs the jury that if they believe, from the evidence and under the instructions of the court, that the plaintiff has made out his case as laid in the declaration, or either count thereof, they must find for the plaintiff. ^^ (3) The court instructs the jury that if you believe from the evidence that the plaintiff has proved her case as laid in her declaration, or either count thereof, then you will find the issues for the plaintiff.'* §313. Duty to exert efforts to avoid disagreement. — (1) The court instructs the jury that the only mode provided by our constitution and laws for deciding questions of fact is by the verdict of the jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty can not be at- tained or expected. Although the verdict to which a juror "' "We see no error here," says the for the pain and suffering that he en- Supreme Court of Montana. "The dured and for his diminished and lost phrase 'any length of time,' read in earning capacity for the period of his juxtaposition with the phrase 'unless natural expectancy." Beeler v. Butte you find death, was instantaneous,' &c. Copper Development Co., 41 makes it clear that the court intended Mont. 465, 110 Pac. 528. to advise the jury that there must ^ Donk Bros. Coal &c. Co. v. Thil, have been an appreciable period of 228 111. 233, 81 N. E. 857. suffering. * * * Unquestionably, " Mount Olive &c. Coal Co. v. Rade- his right of action included damages macher, 190 III. 538, 60 N. E. 888. § 3J^3 INSTRUCTIONS FORMS. 334 agrees must, of course, be his own verdict, the result of his olvn convictions, and not a mere acquiescence in the opinions of his fellows, yet, in order to bring twelve minds to a unanimous re- sult, you must examine the questions submitted to you with can- dor and a proper regard and deference to the opinions of each other. You should consider that you are selected in the same inanner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impar- tial, or more competent to decide it, or that more or clearer evi- dence will be produced on the one side or the other. And with this view it is your duty to decide the case if you can conscien- tiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other in all cases. In the present case the burden of proof is upon the plain- tiff to show all the material allegations of his complaint by a fair preponderance of the evidence and upon the defendant to show contributory negligence, if any existed. In conferring to- gether, you ought to pay proper respect to each other's opinions, and listen, with a disposition to be convinced, to each other's ar- guments. And, on the one hand, if much the larger number of your panel are for the plaintiff, a dissenting juror shoujd con- sider whether doubts in his mind as to the correctness of their conclusions are reasonable in view of the fact that doubts which you may have make no impression upon the minds of other men equally honest, equally intelligent with yourselves, and who have heard the same evidence with the same attention, with an equal desire to arrive at the truth and under the sanction of the same oath. And, on the other hand, if a majority are for the de- fendant, the minority ought to seriously ask themselves whether they may not be reasonable and ought to doubt the correctness of their judgment which is not concurred in by most of those with whom they are associated and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.^° (2) The court instructs the jury that you are just as com- petent, just as able, just as likely to decide the case, and decide "^ Lathrop v. Fargo-Moorhead St. R. Co., 23 N. Dak. 246, 136 N. W; 88. 335 CAUTIONARY INSTRUCTIONS. §313 it right, as the next jury that would be called upon the case would be. * * * Now I do not want you to understand by what I say that you are going to be made to agree or you are going to be kept out until you do agree, that is not the idea, but I do want you to understand it is your duty and you must make an honest and sincere effort to arrive at a verdict. Jurors should not be obstinate; they should be open-minded; they should listen to the arguments of others and talk matters over fully and fairly and freely and make an honest effort, as fair-minded men, to come to a conclusion.^" (3) The court instructs the jury that it is the duty of jurors to return a verdict. The court does not intimate to you in the slightest degree what your verdict shall be. I have submitted four verdicts to you — one of assault with intent to kill; one of assault with intent to do bodily harm ; one of assault and battery, and one of not guilty. It will be your duty to return one of those verdicts. I do not say what kind of verdict; that is for you. This thing of jurors sitting in a case and going out and can't agree is not right. Every man has a right to his opinion, but he has the right to consider that he might be mistaken one way or the other, and I expect verdicts in this court, and I have been in the habit of getting verdicts. All I expect is a verdict.^' " Barlow v. Foster, 149 Wis. 613, " State v. Price, 30 S. Dak. 299, 138 136 N. W. 822. N. W. 14. CHAPTER XXXIV. CHATTEL MORTGAGES. Section Section 314. Good faith in execution of chat- 317. Application of payments on tel mortgage. mortgage debt. 315. Conversion of chattels by mort- 318. Compliance with conditions of gagee. foreclosure by posting notice. 316. Determination of question whether mortgagee had rea- sonable grounds to feel inse- cure. § 314, Good faith in execution of chattel mortgage. — ^The court instructs the jury that the only issue which the court will submit to you for your determination is the question whether or not the chattel mortgage in question was given and taken in good faith between H. C. A. and J. F. A., or was it for the pur- pose, between them, of hindering, delaying, or defrauding the creditors of the said H. C. A. as alleged in defendant's answer?' § 315. Conversion of chattels by mortgagee. — The court instructs the jury that the fact that the books, papers, and vouch- ■ers of the plaintiff have been gone through with, and the receipts of L. J. E. and a balance of $ on the account of said E. on the books has been ascertained, and that N. T. E., for L. J. E., had offered to pay the said $ , with an addition of per cent., did not affect the right of the plaintiff to recover. If as a matter of fact at the time of said alleged offer there was owing and unpaid to the plaintiff by the said E. an amount of money in excess of the alleged offer, and the same remained unpaid; that ' Adams v. Dempsey, 29 Wash. ISS, Hogland, 73 Ind. 472 ; Hinchman . . 69 Pac. 738. For instructions on Parlin & Orendorff Co., 81 Fe'd. 1S7, fraudulent conveyances, see Simpkins 26 C. C. A. 323; Pierce v. Rehfuss, T. Smith, 94 Ind. 470; Sherman v. 35 Mich. 53. 337 CHATTEL MORTGAGES. §31? under the terms of the mortgage the same secured all debts owing to the plaintiff at that time by L. J. E. ; and that if the mortgage debt, as evidenced by the mortgage of -, , was owing and unpaid, and was not included in the account of said E., on plaintiff's book — it was a proper item to be considered by the juiy in ascertaining what amount was due on the mortgage of , , if anything, by L. J. E.^ § 316. Determination of question whether mortgagee had reasonable grounds to feel insecure. — The court instructs the jury that the mere fact that the plaintiff or the beneficiaries in the note and deed of trust shown in evidence deemed himself or themselves insecure, or that he or they deemed the payment of the note by defendant as insecure, is not conclusive upon the jury. And it is for the jury to consider all the facts and circumstances shown in evidence, and from them to determine whether plain- tiff or said beneficiaries. P., F., had reasonable grounds for deeming himself or themselves insecure, or for deeming the pay- ment of the note by the defendants as insecure; and by 'rea- sonable grounds,' is meant such facts and circumstances as would lead a reasonably prudent man, acting in good faith, to believe himself insecure in the respects above mentioned.^ §317. Application of payments on mortgage debt. — (1) The court instructs the jury that if they beheve from the evi- dence that S. gave a general consent for H. and E. to credit all payments to the excess of the mortgage debt, then it was neces- sary at the time of each payment to have S.'s permission to do so. And if he had given general permission to so credit the ac- count it would have been necessary to revoke said permission before he could complain at the apphcation of the payments.* "Peterman v. Henderson, 147 Ala. Dibrell, 42 Tex. Civ. App. 99, 95 S. 689, 40 So. 756. See also, Riddle v. W. 628 (action to foreclose). Blair, 163 Ala. 314, 51 So. 14 (con- = Feller v. McKiUip, 109 Mo. App. version by bailee) ; Crouch Hdw. Co. 61, 81 S. W. 641. See also Carrera V. Walker, 51 Tex. Civ. App. 571, 113 v. Dibrell, 42 Tex. Civ. App. 99, 95 S. S. W. 163 (conversion by mortga- W. 628. gee) ; Feller v. McKillip, 109 Mo. " Speakman v. Vest, 166 Ala. 235, 51 App. 61, 81 S. W. 641 (replevin by So. 980. mortgagee for insecurity) ; Carrera v. 22 — Branson's Inst. §3l8 INSTRUCTIONS — FORMS. 338 (2) The court instructs the jury that if they believe from the evidence that the property sold for its value at the purported sale under the mortgage, they will find that to be the amount of credits to which S. is entitled for the property so attempted to be sold/ § 318. Compliance with conditions of foreclosure by post- ing notice. — The court instructs the jury that a posting of notices for each sale in public places in the Town of H., in M. county, for days before each sale, giving date, terms and place of sale, and a description of the property to be sold would be a compliance with the conditions of foreclosure provided for in the mortgage.® ' Speakman v. Vest, 166 Ala. 23S, ' Speakman v. Vest, 166 Ala. 235, SI So. 980. SI So. 980. CHAPTER XXXV. COMPROMISE AND SETTLEMENT. Section Section 319. Essentials of settlement. 323. Compromise as a defense. 320. Conclusiveness of settlement. 324. Settlement without knowledge of 321. Explanation of terms of receipt. attorney. 322. Fraud in procuring settlement. § 319. Essentials of settlement. — The court instructs the jury that in order to constitute a settlement, it must appear from the evidence that the parties expressly or impliedly agreed upon a balance due, and although you may believe from the evidence that on or about the day of , , the parties met to- gether, and looked over their accounts, and struck a balance, this would not be binding upon the parties as a settlement, unless you further find from the evidence that both the parties then agreed or understood that such balance should be regarded as the amount due from the defendant to the plaintiff.^ §320. Conclusiveness of settlement. — (1) The court in- structs the jury that the law favors the settlement of disputed matters between parties, and approves of compromises of un- settled and disputed claims. When parties enter into a settlement of their matters, the law will presume they consulted their own interests in making the arrangement, and such settlements 'will be encouraged by the law, and they will not be interfered with where there is no fraud or mistake. If a settlement, by way of a compromise of a disputed claim, is made, it can not be avoided by either party, on a claim of any fraud about it, unless the party who makes such claim, and seeks to rescind the settle- ment, returns to the other party what he has received by virtue of it. If he keeps what he receives, he recognizes the settlement, and is bound by it.^ "Loomer v. Thomas, 38 Nebr. 277, 'Hart v. Gould, 62 Mich. 262, 28 56 N. W. 973. N. W. 831. 339 8 321 INSTRUCTIONS^FORMS. 34O (2)' The court instructs the jury that the defendant pleads final and complete settlement between it and plaintiff with ref- erence to the matters in controversy. This the plaintiff denies. Now, if you find from the evidence that plaintiff and defend- ant did make a full and complete settlement of all matters in con- troversy, and said settlement, if any, was made after a knowl- edge, by both parties, of all the facts, then plaintiff can not § 321. Explanation of terms of receipt. — The court in- structs that, while the law permits the maker of a receipt given in settlement of a controversy to explain its terms and circum- stances under which they were written, this does not mean that either of the parties to the receipt can by explanation change the facts and circumstances as they actually existed at the time the receipt was given. It does not follow that because one may be permitted to explain an ordinary receipt given by one party to an- other that either party to that receipt may explain a secret inten- tion which may at the time have been in his mind, and which the other party thereto knew nothing of, and, if in this case you find from all the evidence and circumstances proven that the settle- ment made between the plaintiff and the defendant upon the day of , 19 — , was made by the defendant with the under- standing and belief that the notes in controversy were included in it, and that the plaintiff knew, or should have known by the nego- tiations which took place, that the defendant so understood the fact, and, while knowing such fact, executed the receipt in con- troversy and upon its delivery to the defendant took and ac- cepted $ from the defendant, then and in such event your verdict must be for the defendant, no matter what secret inten- tion, if any, the plaintiff may have had in his mind at the time.* ' "There is no affirmative error in on it by an ordinary man of fair in- this charge." Texas Lumber Mfg. telligence would be that appellant Co. V. Prince (Tex. Civ. App.), 1S4 would not be prevented from recov- S. W, 231. ering on the notes because of the set- * "While not entirely approving the tlement had, unless he knew that the language used in the instruction, yet payment was made on the condition we believe that, taken as a whole, the that the notes were included in the interpretation which would be placed settlement, and that the instruction 341 COMPROMISE AND. SETTLEMENT. § 322 §322. Fraud in procuring settlement. — (1) The court in- structs the jury that if you shall believe from the evidence in this case that at the time plaintiff signed and acknowledged the written agreement or compromise, if he did sign and acknowl- edge the same, that defendant's agents represented to him that they only wanted the paper to enable the defendant to settle with the insurance company, and shall further believe that plaintiff did not know or understand that by said paper he was settling his claims, now sued for in this action, then plaintiff is not bound by said agreement of compromise/ (2) The court instructs the jury that a paper has been put in evidence on this trial, called a "release." It is a written declara- tion by the plaintiff that at the date thereof, , , , there was nothing whatever due to him from the defendant by virtue of any past deal or transaction whatever. The language is plain and intelligible, and its meaning and effect could not be misunderstood by any person of ordinary intelligence, and un- less the plaintiff was induced to sign it by the fraud of the de- fendant, or it was wholly without consideration, it is binding upon the plaintiff, and he can not recover if he signed the paper deliberately, with full knowledge of its contents, or not under the influence of any mistake. If it was induced by fraud, or was wholly without consideration, then it is not binding. The law approves of settlements and compromises of disputed claims, and, when deliberately made, the parties are bound by them. The law upholds and sustains them and will not disturb them, or sanc- tion any interference with them, without the consent of the par- ties to them, except upon the ground of fraud or mistake. If you find that the plaintiff desired the defendant to buy the property from A. that was conveyed by the bill of sale, which was delivered at the same time as the assignment of the lease containing this release was delivered, and that the defendant would not make that deal unless the plaintiff would sign 'such a release or dec- laration, and the plaintiff signed it in order to have that sale of his wife's property consummated, that would be a sufficient did not mislead the jury." Wilson 'Lax-Fos Co. v. Rowlett, 144 Ky. V. Wilson, 49 Ind. App. 109, 96 N. E. 690, 139 S. W. 836. 791. § 323 IN3TRUCTI0NS FORMS. 342 consideration for the release, and no promise by the defendant made at the time or subsequently to pay plaintiff, if any such promise was made, can be of any avail to plaintiff in this suit, or relieve him from the binding effect of the settlement. The con- sideration for the release need not pass to the plaintiff. It is just as binding upon him if the consideration is paid to his wife, if it was a part of the same transaction. The release can only be avoided in case the defendant and his attorney deceived plain- tiff as to its contents and effect, and thereby induced him to sign it.® § 323. Compromise as a defense. — The court instructs the jury that if they find that the parties met and this matter was all settled up and was so understood by the parties, each party presenting a claim against the other, and the pretended settle- ment was not a myth, but a reality, that constitutes a good de- fense to this action and the verdict must be for the defendants.' § 324. Settlement without knowledge of attorney. — The court instructs the jury that when parties have gone to law about a matter, they may settle between themselves without the intervention of an attorney on either side, or with an attorney on one side, if they see fit to do so ; but after an action is com- menced, and the parties appear with an attorney in court, any settlement of the claim out of court without the knowledge or consent of the attorney is to be viewed with suspicion. If there is any fraud in, the case, such a settlement may be set aside.^ * Averill v. Wood, 78 Mich. 342, 44 ' Falconio v. Larsen, 31 Ore. 137, 48 N. W. 381. Pac. 703, Z7 L. R. A. 254. ' Doyle V. Donnelly, 56 Maine 26. CHAPTER XXXVI. CONTRACTS. Section 325. Meeting of minds. 326. Mental capacity to contract. 327. Consideration. Performance of contract. Breach of contract. Breach of contract — Act of third person in persuading party to breach contract. Abandonment of contract. Abandonment of contract — Meas- ure of damages. 333. Construction of contracts by jury. 334. Customs and usages in construc- tion of contracts. 328. 329. 330. 331. 332. Section 335. Contracts entered into by fraud. 336. Contracts not to enter into com- petitive business. 337. Implied contracts to pay for services. 338. Implied contract to pay board. 339. Contracts to make loan. 340. Contracts for exchange of prop- erty. 341. Contracts for water for crops. 342. Contracts for fruit trees. 343. Contracts of employment — Stage manager. 344. Burden of proof of contract. § 325. Meeting of minds. — The court instructs the jury- that if from the greater weight of the testimony the jury should find that the plaintiff honestly believed the contract was on a six and a half per cent, basis, and that the defendant honestly be- lieved that the contract was for $ , then their minds had not come together so as to make a contract, and if the jury should find from the greater weight of the testimony that no contract was made, then they should find what it was reasonably worth to build such a mill as the one about which the suit was brought, deducting therefrom what was already paid, if they should find that he had not been paid a sufficient amount.^ "The instruction, properly con- decisions of this court." Burton v. strued, amounted to saying to the Rosemary Mfg. Co., 132 N. Car. 17, jury that if the minds of the parties 43 S. E. 480. See also Hubbard City did not come to an agreement there &c. Oil Co. v. Nichols (Tex. Civ. was no special contract, and is sus- App.), 89 S. W. 795; Mackin v. tained both by the elementary prin- Dwyer, 205 Mass. 472, 91 N. E. 893. ciples of the law of contract and the 343 § 326 INSTRUCTIONS FORMS. 344 §326. Mental capacity to contract. — (1) The court in- structs the jury that if you beHeve from the evidence that P. B., on the day of , 19 — , when he transferred to M. J. B. 250 shares of the stock of the P. B. Sewer Pipe Company and 200 shares of the stock of the K. Vitrified Brick Company, did not have mind and mental capacity sufficient to understand his prop- erty rights and the character, objects and nature of the transfer of the stock, and the mental ability to transfer same, according to a definite desire of his own, he was of unsound mind; but if you believe from the evidence that at that time he did have mind and mental capacity sufficient to understand his property rights and the character, objects and nature of the transfer of the stock and the mental ability to transfer it according to a definite purpose and desire of his own, he was not of unsound mind.^ (2) The court instructs the jury that in this case the plain- tiff is entitled to recover unless they are reasonably satisfied from the evidence that he was at the time of making the con- tract of unsound mind, 'to that extent that he was not capable of attending to the ordinary affairs of life.^ (3) The court instructs the jury that any influence obtained over the mind of P. B., by M. J. B., to such an extent as to de- stroy his free agency and to constrain him to do against his will what he would otherwise refuse to do, is undue influence, whether such influence was obtained directly or indirectly, or whether at one time or another, but any reasonable influence obtained by acts of kindness, or by argument addressed to the understanding, is not in law undue influence." (4) The court instructs the jury, at the request of the ap- pellee, that the fact that a man made an improvident bargain; that he is generally unthrifty in his business, or unsuccessful in 'The instruction was held not ob- ant" should have been used where jectionable as assuming a fact not the first pronoun "he" occurs. Domi- established by the evidence. Bannon nick v. Randolph, 124 Ala. 557, 27 So. V. Louisville Trust Co., 150 Ky. 401, 481. 150 S. W. 510. "Bannon v. Louisville Trust Co., 'This charge was held unobjection- 150 Ky. 401, ISO S. W. 510. able except that the word "defend- 345 CONTRACTS. § 327 one or more enterprises, — does not of itself prove him to be a non compos mentis." (5) The court instructs the jury that even though the plain- tiff may have been adjudged insane, still if you believe from the evidence that at the time of the transaction in question, he had sufficiently recovered and had mental capacity to understand and comprehend the nature and consequences of his act and did so understand same, you will then return a verdict for the de- fendants.'' (6) The court instructs the jury that if you believe the mind of the said B. C. G. was impaired at the time of the said trans- action, yet you further believe from the evidence that at the time of the transaction in question he had mental capacity to under- stand the nature and effect of said transaction with the defendant and did so understand it, then you will find for the defendant and so say.* (7) The court instructs the jury that proof of partial insan- ity will invalidate contracts generally, and would be sufficient to defeat an action upon a contract, which contract was the direct offspring of partial insanity, although the party making the contract, at the time of making it, was sane in other respects upon ordinary subjects.® (8) The court instructs the jury that reason being the com- mon gift of God to man, every man is presumed to be sane, and insanity can only be proved by clear and unexceptionable evi- dence.^" § 327. Consideration. — The court instructs the jury that as a rule, where there is no fraud, and a party receives all the "Dominick v. Randolph, 124 Ala. American Bible Soc. v. Price (111.), 557, 27 So. 481. 5 N. E. 126; Wheeler v. State, 158 'Gee V. Johnson (Tex. Civ. App.), Ind. 701, 63 N. E. 975. 142 S. W. 625. For other instructions 'Gee v. Johnson (Tex. Civ. App.), on insanity, see Wheeler v. State, 158 142 S. W. 625. Ind. 701, 63 N. E. 975; Dacey v. "Dominick v. Randolph, 124 Ala. People, 116 111. 555, 6 N. E. 165; 557, 27 So. 481. Stoner v. Riggs, 128 Mich. 129, 87 N. «■ Dominick v. Randolph, 124 Ala. W. 109; Central of Georgia R. Co. v. 557, 27 So. 481. Harper, 124 Ga. 836, 53 S. E. 391; § 328 INSTRUCTIONS FORMS. 346 consideration he contracted for, the contract will not be set aside for want of failure of consideration; and, where the value of the consideration is indefinite and uncertain, the parties have a right to determine it for themselves, and courts and juries ought not to overturn their decisions upon its sufficiency ; and whether one contracts for the performance of an act, or several acts, which will afford him pleasure, gratify his ambition, or please his fancy, his estimate of the value should be left undisturbed." §328. Performance of contract. — (1) The court instructs the jury that you must consider the condition of the parties and the circumstances surrounding the matter; the size of the farm; the probable needs of such a farm ; the ordinary uses that a farm requires a well for in this neighborhood — to determine what was in the minds of the parties; what they contemplated when this well should be put there.^^ (2) The court instructs the jury that, under the written con- tract in evidence, the defendant was entitled to have erected such a dock as was called for by the terms of the contract, and €ven though the jury may believe that there has been a sub- stantial performance of the terms of the contract by the plain- tiffs, yet, if the jury believe that the terms have not been fully complied with, the jury should allow to the defendant such sum or sums as, from the evidence, they may believe are reason- able and proper to enable the defendant to complete the dock in the manner stipulated for in the contract/^ (3) The court instructs the jury that if the contract called for first-class trees, it is not a sufficient performance on the part of the plaintiff that some of the trees set out by it were first class ; nor would it be sufficient to defeat the plaintiff's right of action " Ray V. Moore, 24 Ind. App. 480, well required to fulfill the terms of 56 N. E. 937. As to fraud, see Lake the contract." Richison v. Mead, 11 S. V. Tyree, 90 Va. 719, 19 S. E. 787; Dak. 639, 80 N. W. 131. For in- First State Bank v. Borchers, 83 struction on question whether con- Nebr. 530, 120 N. W. 142. tract oral or to be in writing, see " "We find no error in this instruc- Tucker v. Sheeran, 155 Ky. 670, 160 •tion. The court seems to have very S. W. 176. fairly and fully presented the ques- " Keeler v. Herr, 157 111. 57, 41 N. tion to the jury as to the kind of a E. 750. 347 CONTRACTS. §329 that a few of said trees were not first class; but if the whole number, taken as one entire lot, was what would be known as first class, that would be sufficient. Any considerable number of trees which would not be first class, or of kind and char- acter inferior to that agreed upon between the parties, would defeat the plaintiff's right of action." (4) The court instructs the jury that it is incumbent on the defendants, under the contract alleged in plaintiff's declaration, to show an offer to perform, or some excuse for non-performance on their part, in order to excuse themselves from liability to pay damages, if the evidence shows that plaintiffs were ready and willing to perform their part of the contract.^" §329. Breach of contract. — (1) The court instructs the jury that if either party violated the contract — refused to carry it out and to perform the conditions therein stated — then the other party would have a right of action for damages based on the breach of the contract.^" "In approving the instruction, the court said: "The appellant contends that there was no question but that the trees were to be first-class, and that the court erred in saying to the jury, 'If the contract called for first- class trees,' because thereby it was submitted to them as a question whether the trees would be first-class or not. It is not admitted in the pleadings that the trees were to be first-class, but it is undisputed in the testimony, and so clearly so that no prejudice could have resulted from this statement of the court." Des Moines &c. Tree Co. v. Polk County Homestead &c. Co., 82 Iowa 663, 45 N. W. 773. See also Iron Clad Mfg. Co. V. Stanfield, 112 Md. 360, 76 Atl. 854 (balance due— meas- ure of damages) ; Hall v. Parry, 55 Tex. Civ. App. 40, 118 ,S. W. 561 (estoppel to deny liability). For instruction on time for completion of contract, see Anderson v. Hilker, 38 Wash. 632, 80 Pac. 848. For in- struction on substantial performance, see Alaska Fishermen's Packing Co. V. Chin Quong, 202 Fed. 707, 121 C. C. A. 169. For instructions on recov- ery when contract modified, see Will- iar V. Nagle, 113 Md. 614, 11 Atl. 680; Baldwin v. Polti, 45 Tex. Civ. App. 638, 101 S. W. 543. '^ The instruction was held not open to the objection of assuming the ex- istence of a contract, especially when considered in connection with other instructions. Bird v. Forceman, 62 111. 212. For instruction on contract to furnish water to make rice crop, see Kelly v. Corrington (Tex. Civ. App,), 105 S. W. 1154. See also Scott V. Parkview Realty &c. Co. (Mo.), 164 S. W. 532 (grading contract — assumption of facts — comment on evidence) ; Malloy v. Drumheller, 68 Wash. 106, 122 Pac. 1005 (reference to contract as "option agreement"). "Burgess v. Tucker, 94 S. Car. § 33° INSTRUCTIONS FORMS. 348 (2) The court instructs the jury that when the defendant, W., mailed to plaintiff. A., the letter in evidence, declaring that he declined to have anything more to do with the contract, then the plaintiff had nothing further to do in the premises; this was a renunciation of the contract upon which the suit is founded. And the- plaintiff is entitled to such damages as the jury may believe from the evidence he has sustained by reason thereof, not exceeding the sum of $ , the amount claimed in the pe- tition." § 330, Breach of contract — Act of third person in persuad- ing party to breach contract. — The court instructs the jury that not only is the conscious invasion of the rights of another in a wanton, wilful and reckless manner an act of wrong, but the same result follows when the wrongdoer does not actually realize that he is invading the rights of another, provided the act is committed in such a manner that a person of ordinary reason and prudence would say it was a reckless disregard of another's rights.^* § 331. Abandonment of contract. — The court instructs the jury that the failure to perform some provision of the contract, unless accompanied by acts indicating an intention on the part of the party in default to renounce and abandon the contract, would not justify the other party in renouncing and abandoning it. Failure to pay the estimate at the time would not justify the G. Const. Company in abandoning the contract unless it was accompanied by conduct that would indicate that the rail- road company itself was renouncing the contract.^" § 332, Abandonment of contract — Measure of damages. — The court instructs the jury that if they believe from the evi- 309, n S. E. 1016. See also Walker W. 739; Graver v. Acme Harvester V. Lundstrum, 132 Mo. App. 367, 112 Co., 209 111. 483, 70 N. E. 1047. S. W. 1; Marine Iron Works v. ''Burgess v. Tucker, 94 S. Car. Wiess, 148 Fed. 14S, 78 C. C. A. 279 309, 11 S. E. 1016. (estoppel to allege breach). '"American Bonding &c. Co. v. " Wallingford v. Aitkins, 24 Ky. L. Baltimore &c. R. Co., 124 Fed. 866, 1995, 72 S. W. 794. See Mitchell v. 60 C. C. A. 52. Branham, 104 Mo. App. 480, 79 S. 349 CONTRACTS. § 334 dence that plaintififs and defendants entered into the contract sued on and in evidence and that the plaintiffs, in pursuance of said contract, hauled logs for defendant, which, according to the contract price, leaves a balance of dollars, the amount claimed in the petition, they will find for the plaintiffs said sum of dollars, with interest from the day of , 19 — , unless they further believe from the evidence that the plaintififs, without fault of defendants, abandoned said contract and that by reason of said abandonment, if there was any, the defendants were damaged by said logs being left on the pits and unhauled ; and if the jury so believe they will deduct such damage, if any, from said sum of dollars. They will find the difference for the defendants, not to exceed the amount claimed, to wit, dollars. =" § 333. Construction of contracts by jury. — The court in- structs the jury that all contracts, whether written or oral, that have been introduced in this case are before you for your consid- eration and interpretation, together with the circumstances and surroundings of the parties, and it is for you to determine, from all the circumstances and evidence of the case, the attitude and conduct of the parties, what was the real intention of the parties.^^ § 334. Customs and usages in construction of contracts. — The court instructs the jury that if you believe from the evi- dence that at the time the contract in question was made there was a general custom existing among cotton men to the effect that the seller should notify the buyer when the cotton was '"Slusher v. Hopkins, 28 Ky. L. rogation or rescission calling for an 347, 89 S. W. 244. For instructions interpretation. But where there are on interest on damages, see Fitzger- disputes as to the intentions of the aid V. Benner, 219 111. 485, 16 N. E. parties to the written agreement, and 709. questions of rescission by disputed ^"It is urged that the instruction oral agreements, then the considera- is in violation of the rule that con- tion of the written contract in con- tracts are to be construed by the nection with the oral contracts be- court. Such is undoubtedly the gen- comes a question for the jury." Cars- eral rule where there are no ambigui- tens v. Earles, 26 Wash. 676, 67 Pac. ties, no conflicting contracts, and 404. where there are no questions of ab- § 335 INSTRUCTIONS FORMS. 35O ready for delivery, and you further believe that said contract was made under circumstances where said custom would apply, or if you believe from the evidence that the defendant, T. A. H., on or about , , agreed to give plaintiffs notice when said cotton was ready for delivery, now, if you believe either of the above propositions, and you further believe that the de- fendant did not give such notice to the plaintiffs, and you be- lieve that the plaintiffs would have received said cotton, if said notice had been given, and that they have been damaged, then you are instructed to find for plaintiffs and assess their damages as charged in the general charge of the court.^^ § 335. Contracts entered into by fraud. — The court in- structs the jury that whether the defendants entered into the contract through fraud or bona fide makes no difference as to their liability to the plaintiff, for the law is that, if one of two innocent persons must suffer loss, he who brought about such condition is responsible and is bound to make good to the other party any damage which his unauthorized act has brought about.^^ § 336. Contracts not to enter into competitive business. — ( 1 ) The court instructs the jury that if you believe from the evidence before you that as a part of the transactions between plaintiff and defendant, by which plaintiff on the of , , purchased from defendant his (defendant's) one-half in- terest in the Drug Company, defendant agreed not to be thereafter in any way connected with the drug business in the town of , county, , so long as plaintiff was in the retail drug business in said town, without plaintiff's consent, and '^Holder v. Swift (Tex. Civ. App.), an exception to this instruction, says: 147 S. W. 690. Special agreement "Falsehood and deceit are not neces- as to manner of doing work and sary to charge an agent personally price to be paid, see Gastlin v. Weeks, with a contract he had no authority 2 Ind. App. 222, 28 N. E. 331. In- to make. * * * The absence of struction not open to objection that moral fraud or intentional wrong- jury was left to construe advertising doing on the part of the defendants contract, see Ayer v. Devlin (Mich.), is not sufficient to relieve them from 146 N. W. 257. liability." Lagrone v. Timmerman, "^The higher court, in overruling 46 S. Car. 372, 24 S. E. 290. 351 CONTRACTS. § 336 you further believe from the evidence that at said time, or there- after, said agreement was reduced to writing and signed by said defendant, you will find for plaintiff; and, unless you so find from the evidence, you will find for defendant.^* (2) The court instructs the jury that the measure of plain- tiff's damages for the breach of the agreement, if any, on the part of defendant not to engage in the drug business at , would be the loss of profits, if any, to plaintiff's drug business at said town of , which you may find from the evidence was the direct result of defendant's engaging in the same busi- ness at said point ; and, if he has suffered no such loss of profits, you will not find any actual damages against defendant.^^ (3) The court instructs the jury that if you beheve from the evidence in this case that, prior to the execution o£ the written instrument offered in evidence, the plaintiff and defendant had entered into a verbal contract, by the terms of which defendant was to sell to plaintiff his interest in the drug business at for a specified consideration, and that the defendant did, in pur- suance thereof, sell and deliver to plaintiff his interest in said business, and that the trade was then and there closed, and all the terms and conditions of said trade fully complied with, and you further believe that it was not then and there contemplated or agreed between said parties, as a part of said contract, that the defendant would not be in any way connected with the drug business, and would not hire to or work for any other drug firm in town of , , as long as the plaintiff was in busi- ness, without his consent, then, if you so find from the evidence, you will find for the defendant.^" (4) The court instructs the jury that if you find for the plaintiff, you will then consider what, if any, actual damages he has sustained to his drug business in the town of as a direct consequence of the breach of the agreement, if any, on the part of defendant, not to so engage in the drug business in the town of ; and for such damages as you may find he so ^ Crump V. Ligon, 37 Tex. Civ. ''Crump v. Ligon, Zl Tex. Civ. App. 172, 84 S. W. 250. For similar App. 172, 84 S. W. 2S0. instruction^, see Downs v. Woodson ='= Crump v. -Ligon, 37 Tex. Civ. (Ky.), n S. W. 152. App. 172, 84 S. W. 250. § 337 INSTRUCTIONS FORMS. 352 sustained, if any, you will return a verdict in plaintiff's favor against defendant ; the damages so found not to exceed, however, the sum of $ per month from the date which you may find from the evidence defendant re-engaged in the drug business in the town of since , , and between that date and this." §337. Implied contracts to pay for services. — (1) The court instructs the jury that if the plaintiff was ordered by the defendant to do the work, and, judging that extras were included in the orders, notified the defendant that he should require pay for extras, and the defendant made no reply to the notice, but continued to give orders including ejctras, the natural conse- quences of defendant's conduct would be to influence the plain- tiff to expend his money on the extra labor, which he might not have done had the defendant, upon notice, refused to pay for extra labor; and if defendant's conduct, such as has been above supposed, in fact did induce the plaintiff to believe it, and to make expense which he would not otherwise have done, the defendant is chargeable with an intent to induce the plaintiff to do the extra work, and ought to pay for it.^^ (2) The court instructs the jury that, if you find from the evidence that the plaintiff never demanded payment during the lifetiine of A. F. for the services claimed to have been rendei'ed by her in caring for, boarding, and washing for him, it must be presumed from such fact that the said A. F. had paid for his services, and that, before you can find for the plaintiff under such circumstances, you must believe and find from the evi- dence that A. F. did not pay her for such services.^' (3) The court instructs the jury that where the person ren- dering services and the person for whom they are rendered are members of a family living together as one household, and the service appertains to such condition, an implication of a promise on the part of the recipient to pay for the service does not arise "Crump V. Ligon, 37 Tex. Civ. =° Cole v. Water, 164 Mo. App. App. 172, 84 S. W. 250. 567, 147 S. W. 552. =* McCaffrey v. Groton &c. St. R. Co., 85 Conn. 584, 84 Atl. 284. 353 CONTRACTS. § 2,^7 from the mere rendition and acceptance thereof, but the services will be presumed to be gratuitous and to be bestowed and ren- dered in the performance of duty or the manifestation of kindly regard for which remuneration was not contemplated; and, to support a recovery therefor, the burden will be on the plaintiff to show either an express contract for compensation or such circumstances of the services as will overcome the presumption of the law that they were gratuitous, and to show that it was the intention and understanding of the parties that the services were to be paid for. So in this cause if you find that the plain- tiff herein resided with her mother, and that she and her mother constituted one household, any services which plaintiff may have rendered for her mother, which appertain to such condition, are presumed to have been rendered gratuitously, and on account of the relation of the parties and the condition in which they lived and before the plaintiff can recover in this case, she must show such circumstances as will overcome this presumption, and make it appear that it was the understanding between her and her mother that the services were to be paid for.^" (4) The court instructs the jury that if you find that the services were rendered as alleged, in order that there may be an obligation to pay wages for them, there must have been either an express promise by decedent to pay for them, or they must have been rendered urider such circumstances as that the law will imply such an obligation.^^ (5) The court instructs the jury that, if the plaintiff rendered valuable services for the defendant's benefit, without any agree- ment as to compensation, then he is entitled to recover the rea- sonable value of such services, if such services were rendered at the instance of defendant or some one authorized to act for it. Plaintiff would also be entitled to recover, if he rendered such services without any agreement as to compensation and at the in- stance of a person not, authorized to act for the defendant, if the defendant knew that the services were being rendered for its ben- "° Miller V. Miller, 47 Ind. App. "Miller v. Miller, 47 Ind. App. 239, 94 N. E. 243. 239, 94 N. E. 243. 23 — Branson's Inst. § 337 INSTRUCTIONS FORMS. 354 efit, and accepted the benefit of such services without notifying plaintiff that it would not pay therefor.^^* (6) The court instructs the jury that, when services are ren- dered upon an understanding that the remuneration is to be at the discretion of the employer, no action is maintainable for the value of such services.'^'' ( 7 ) The court instructs the jury that, if you believe from the evidence that the plaintiff, at the request of J. L. K., performed for him labor and service, the law implied a promise on his part to pay for the same what it was reasonably worth.^^° (8) The court instructs the jury that you can not consider the agreement of S. S. (if you believe an agreement was so made) to give plaintiff a ranch in fixing the amount of compensation, but you will only find such sum as will duly compensate him for the services actually rendered.^^*^ (9) The court instructs the jury that it is the law that where one person lives in and as one of the family of another, being provided with food, clothing, lodging, and care as one of the family, and doing labor and work for such other person, and with- out any contract relating to it, such person can not recover for labor performed, nor can the other recover for board, lodging; clothing, etc. In such a case, an action can not be maintained by either party.^^^ (10) The court instructs the juiy that, if" you find from the evidence that the plaintiff, S. E. K., during the time named in her complaint, lived in the family of J. L. K., and as one of the family, and was being provided for by him as one of his family, and without any contract for wages or compensation for her services, or any understanding between them to that effect, then she can not recover for such services and labor. ^^^ (11) The court instructs the jury that if you believe from the "'a Alabama Sec. Co. v. Dewey, 156 "d Stout v. Royston (Ky.), 107 S. Ala. 530, 47 So. 55. W. 784. ■"b Manning v. Dallas, 73 Cal. 420, "e Knight v. Knight (Ind. App.), IS Pac. 34. 30 N, E. 421. °'<= Knight V. Knight (Ind. App.), "f Knight v. Knight (Ind. App.), 30 N. E. 421 (not erroneous in view 30 N. E. 421. of other instructions). 355 CONTRACTS. § 337 evidence that the plaintiff made and entered into a contract with S. A. S., whereby she agreed with the plaintiff that if he would go to the state of California with her and look after her business and children that she would give him a ranch or farm on which he could, make a livelihood for himself and family, and that he did go with her and look after her business and children, then you should find for the plaintiff such sum as you believe from the evidence is the reasonable value of the services rendered to her in looking after her business and children for and during the time he rendered same, not exceeding the sum of $ ; and, if you do so believe from the evidence, you will find for the defend- ant.^'s (12) The court instructs the jury that, although you may be- lieve from the evidence that the plaintiff went to California at the instance of said S. S., yet if you believe from the evidence that he went with her, or performed the services alleged, upon her agreement only to pay his expenses and give him his board, you will find nothing for plaintiff.^^'^ (13) The court instructs the jury that, where labor and serv- ices are rendered, a contract of hiring is presumed, but that the relationship of the parties may raise a presumption that no charge was intended ; and that it is a question for you to decide, taking into consideration all the circumstances, whether there was an implied agreement to pay plaintiff. If you believe it was under- stood between plaintiff and her father that he should pay her, she should have the verdict.^^' (14) The court instructs the jury that if they find from the evidence that defendants wrongfully terminated the contract and refused to permit plaintiffs to finish the building, then plaintiffs are entitled to recover the reasonable value of the work done and materials furnished by them up to the day the defendants refused to permit plaintiffs to carry out the contract, not exceeding the amount alleged in the petition, to wit, $ , less the admitted payment made by defendants, to wit, $ , and not exceeding $ , the balance claimed in the petition.*^'" "8 Stout V. Royston (Ky.), 107 S. "i Johnson v. Johnson, 166 Mo. W. 784. App. 732, 150 S. W. 1130. ''h Stout V. Royston (Ky.), 107 S. "J Moore v. Board of Regents, 215 W. 784. Mo. 705, 115 S. W. 6. § 33^ INSTRUCTIONS FORMS. 356 § 338. Implied contract to pay board. — The court instructs the jury that whenever one person furnishes anything valuable to another, not being under legal obligation to do so, generally the presumption or implication is that the thing furnished is to be paid for; that such is the general rule or implication — ^the rule of a case nakedly stated, naked of all qualifying circum- stances ; that we rarely see a case where the mere fact that one person furnishes an article to another is not accompanied by some circumstances which ordinarily show the terms and condi- tions upon which the article is furnished ; that the ordinary pre- sumption or inference (that payment is to be made) may in such case be strengthened by the accompanying circumstances or may be weakened by them or may be completely overpowered and rebutted by them ; that the general rule bends to circumstances — submits to them ; that whether the general rule or its exception be applicable to this case is a question for the jury to decide; and that, if it appears to the jury from the facts and circum- stances of the case — all of them taken together — that there was an implied promise to pay for the board furnished, if furnished, the plaintiff would be entitled to recover ; and that if it did not affirmatively appear to them from all the testimony in the case from both sides that there was an implied promise to pay, then the plaintiff is not entitled to recover.'^ §339. Contracts to make loan. — (1) The court instructs the jury that if they believe, from all of the evidence in this case, that the defendant agreed to pay to the plaintiff the sum of fifty dollars for his assistance in case he (defendant) suc- ceeded in making a loan of five thousand dollars to one B., who was taken to the office of defendant by the said plaintiff, then the jury will find for the plaintiff in this case, if they further find from the evidence that defendant did make said loan to said B.'' (2) The court instructs the jury that if you believe from °^ Godfrey v. Haynes, 74 Maine 96. "'This instruction was not objec- For instruction on agreement to pay tionable on the ground of assuming for services, see Week v. Rawie, 48 the existence of facts. Phillips v. Ind. App. 599, 96 N. E. 206. Roberts, 90 111. 492. 357 CONTRACTS. § 34O the evidence that the plaintiff has established his contract, and it does not appear to be an unreasonable or immoral contract, in which case the court would not allow him to set it up, he is entitled to recover on it unless the defendant has shown some- thing that would defeat it; and it only remains for you to de- termine whether or not he has established his contract. He is bound to prove it by the preponderance of the evidence ; and if he has so established it, then it remains for you to determine what your verdict will be in his favor, unless the defendant may have shown some matter which goes to defeat his right. The plaintiff is suing on a specific, definite claim, which must be the amount which he claims or nothing at all. He claims that his stock is paid-up stock — that he is not suing to recover from the defendant an amount due on stock which was not paid up. He claims that his stock was fully matured or paid up and that he is entitled on the terms of the contract to have the full amount due on his contract — less the offset of the loan which you have heard mentioned. So your verdict must be in favor of the plaintiff for the full amount he claims, or else in favor of the defendant. There is no ground for you to give a compromise verdict, to give him a few hundred or a greater number of dol- lars, but you must either give the plaintiff the full amount he claims or give a verdict in favor of the defendant.'* § 340. Contracts for exchange of property. — (1) The court instructs the jury that if you find that the plaintiff exchanged with the defendant his house in S. and ten shares of the A. company stock fer 400 shares of the B. Line Company stock, and in consideration thereof and as an inducement to the ex- change, the defendant promised him that he would take said stock at any time thereafter and pay him therefor dollars per share, then it is of no consequence whether the defendant was a principal or an agent in effecting the exchange, and the plaintiff is entitled to recover. But if the jury find, as a fact, that the contract was made in the way in which the defendant ■"Williamson v. Eastern Bldg. &c. Fed. 805, !(, C. C. A. 369 (oral and Assn., 62 S. Car. 390, 38 S. E. 616. written mining contracts — burden of See also Lindblom v. Fallett, 145 proof). § 341 INSTRUCTIONS FORMS. 358 testified that it was, that is, that he was acting as agent for the plaintifif in disposing of his house and procuring for him this stock, it was a totally different contract from the one the plain- tiff declared on, and your verdict would be, on this part of the case, for the defendant.^" (2) The court instructs the jury that if you believe from the evidence that the defendant bought the mules in question from one E. C. M., and that their minds met on the terms of the trade and the terms of the payment, and that said M. ac- cepted $ in part payment therefor, and then delivered the possession of said mules to defendant, relying on his promise for the subsequent payment of the balance, then the title to said mules passed to defendant, and, if you find the facts so to be or if you have a reasonable doubt thereof, you must acquit the defendant.^" §341. Contracts for water for crops. — (1) The court in- structs the jury that if you believe from the evidence that no agreement was made by the plaintiffs and the defendant on the day of , other than that the plaintiffs were to be furnished with water by the defendant for their rice crop and that they were to pay defendant $ , per acre for such water ; and you further find that, on account of drought or acci- dents to defendant's canals over which defendant had no con- trol, the defendant was not able to supply the plaintiffs with a sufficient quantity of water to make a full crop without dis- "In this case the defendant re- was conflicting concerning the ques- quested the court to instruct "that tion as to def|pdant's contract to il the jury find that the defendant take back the stock and as to the was acting as agent and that the question of agency. It was held that plaintifif knew the same, the plaintiff this was a question of fact and was can not recover on the first and submitted to the jury under proper third counts; for the contract, what- instructions from the court. There ever it may have been, was the con- could be no objection to the mere tract of the principal and not the fact that the court failed to adopt agent, for the agent is not liable the defendant's language, since the upon any agreement or contract into instruction as given included all that which he enters merely in his repre- was suggested in the request. Pear- sentative capacity." The court re- son v. Mason, 120 Mass. S3, fused this request and, instead, gave "Melton v. State, 63 Tex. Cr. 573, the above instruction. The evidence 140 S. W. 781. 359 CONTRACTS. § 342 crimination against others who had contracted for water, and that the defendant, without neghgence on its part, as negligence has been hereinbefore defined to you, actually furnished to plain- tiffs their share of the water for their crop from its canals, and that said water from said canals was equally and impartially distributed between the plaintiffs and the other patrons of said canals who had applied to defendant for water — ^you will find for the defendant/^ (2) The court instructs the jury that if you believe from a preponderance of the evidence that the defendant, through its president, R. E. B., on the day of , , entered into a verbal agreement with the plaintiffs to furnish them with suffi- cient water to make a full crop of rice on the said acres of land described -in plaintiffs' petition, and that in order to do so that defendant would not have been compelled to discrim- inate against its other patrons who had contracted for water, and you further believe that the defendant company failed to supply the plaintiffs with sufficient water to make a full crop of rice, you will find for the plaintiffs such an amount in dam- ages as will compensate them for their injury, if any. Should you find that the plaintiffs are entitled to recover damages, you are instructed that the measure of such damages is the difference in the market value of what the plaintiffs raised on the land and what they would have raised with sufficient water, less the cost of harvesting and preparing for market the additional quantity of rice.^* § 342. Contracts for fruit trees. — The court instructs the jury that if you find and believe from the evidence in this case that plaintiff contracted with and warranted that it sell to de- fendant ■ black Ben Davis apple trees and cherry trees, Elberta seedling peach trees and Elberta cling peach trees and Elberta Queen peach trees, and if you further find that plaintiff delivered to defendant the number of trees it contracted to sell him, and that plaintiff warranted that all "Raywood Rice Canal 8?c. Co. v. "'Raywood Rice Canal &c. Co. v. Erp (Tex.), 146 S. W. 155. Erp (Tex.), 146 S. W. 155. § 343 INSTRUCTIONS FORMS. 360 of said trees were first-class and true to name, and if you find that the notes sued on in this case were executed and delivered by defendant to plaintiff with D. S. M. as principal, and S. M. M., as surety, and that said notes were given in payment for said trees, and if you shall further find and beHeve from the evi- dence that said trees, or any part thereof, were not first-class trees, and were not the kinds and quality warranted by plaintiff, and if you shall further find and believe from the evidence that D. S. M. has paid in money on the purchase-price of said trees an amount equal to or greater than the contract price of all of said trees that were true to name and first-class as warranted by plaintiff, and if you find from the evidence that the remainder of said trees were of no value, then in that event you will find the consideration for said . notes has wholly ' failed, and your verdict will be for the defendant on said notes.^' § 343. Contracts of employment — Stage manager. — The court instructs the jury that if you find, from the evidence, the plaintiff agreed with K., upon his arrival in , to devote his whole time and attention to the , and to the duties of his employment, and he then promised and agreed with the defend- ant to advise and counsel with her during business hours with regard to the stage affairs or business affairs of the Opera House, and agreed to advise with her when requested to do so, in consideration of the receipt of dollars per week, and if you are satisfied from the evidence that he habitually failed, and neglected any part or portion of said duties, then plaintiff can npt recover in this action.*" § 344. Burden of proof of contract. — The court instructs the jury that the burden is on the plaintiff to show by a pre- ponderance of the evidence that the defendant entered into the contract with him on which this action is based and for the breach of which he asks for damages.*^ '^^ Stark Bros. Nurseries &c. Co. v. tract of employment, see Kessler v. Mayhew, 160 Mo. App. 60, 141 S. W. Ellis, 27 Ky. L. 1042, 87 S. W. 798. 433. '*Weil v. Fineran, 78 Ark. 87, 93 "Nash V. Kreling, 123 Cal. 18, S6 S. W. 568. Pac. 260. Action for breach of con- CHAPTER XXXVII. CONTRIBUTORY NEGLIGENCE. Section 345. Contributory negligence as de- fense. 346. Meaning of term "contributory negligence." 347. Contributory negligence presup- poses negligence. 348. Duty to exercise ordinary care for one's own safety. 349. Duty to avoid consequences of negligence of another. 350. Necessity that contributory negli- gence be the proximate cause of injury. 351. Recovery notwithstanding con- tributory negligence — Human- itarian doctrine. Section 352. Comparative negligence. 353. Imputed negligence. 354. Acts in emergencies. 355. Opportunity to escape from threatened danger. 356. Necessity for knowledge of dan- ger. 357. Care required of infants. 358. Care required of blind persons. 359. Care required of drunken per- sons. 360. Presumption of contributory neg- ligence. 361. Burden of proof of contributory negligence. §345. Contributory negligence as defense. — (1) The court instructs the jury that if plaintiff was guilty of any act of negligence which directly contributed to his injury, or was guilty of any lack of ordinary care on his part, whether the act be an active one or an omission to do what he ought to have done under the circumstances, and such lack of care, act or omission contributed to the accident, and without which the accident would not have occurred, then you can not go further and apportion the accident or injury, but the plaintiff's contrib- utory negligence in such case defeats recovery and your verdict must be for the defendant.^ ^Traver v. Spokane St. R. Co., 25 Wash. 225, 65 Pac. 284. See also Winfrey v. Missouri &c. R. Co., 194 Fed. 808, 114 C. C. A. 218 (drunken person); El Paso Elec. R. Co. v. Ryan, 53 Tex. Civ. App. 85, 114 S. W. 906; White v. United R. Co., 250 Mo. 476, 157 S. W. 593 ("directly" contributed to cause injuries). 361 § 34^ INSTRUCTIONS FORMS. 362 (2) The court instructs the jury that if the plaintiff was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for the defendants.^ (3) The court instructs the jury that contributory negligence is a defense, and if it is shown by the evidence to exist, the plaintiff can not recover.^ (4) The court instructs the jury that if you find that the com- pany was negligent, that the negligence was the proximate cause, but if you find also that the plaintiff, by his own negligence, con- tributed to the injuries he received, then you should find in favor of this defendant company; or if you find that it was an accident in the purest sense of the word and nobody was to blame for the injuries which this man received, then you should find in favor of the defendant.^* (5) The court instructs the jury that it is the duty of every person to use ordinary care, as hereinafter defined, to avoid in- jury to his person, and the failure to use such care upon the part of the person injured will be negligence, which negligence, if it causes or contributes to cause the injuries complained of, will defeat recovery of damages therefor.^'' §346. Meaning of term "contributory negligence." — (1) The court instructs the jury that contributory negligence is de- fined as such an act or omission on the part of plaintiff's intestate, amounting to a want of ordinary care, concurring or co-operat- ing with the negligent act of defendant, and is a proximate cause or occasion of the injury complained of.'' (2) The court instructs the jury that the plaintiffs' right or 'The refusal of this charge was *To the same effect, see Hartman held reversible error. Rydell v. v. Joline, 112 N. Y. S. 10S7; Reiter- Greenhut, 140 App. Div. 926, 125 N. Connolly Mfg. Co. v. Hamlin, 144 Y. S. 838; Stokes, v. Barber &c. Pav- Ala. 487, 40 So. 280. Elements of ing Co., 207 N. Y. 252, 100 N. E. 597. contributory negligence, see Chicago ' Sellersburg v. Ferd, 34 Ind. App. &c. R. Co. v. Pollard, 53 Nebr. 94, 79 N. E. 220. 730, 74 N. W. 331 ; Galveston &c. R. 'aBehm v. Cincinnati &c. Trac. Co., Co. v. Henning (Tex. Civ. App.), 39 86 Ohio St. 209, 99 N. E. 383. S. W. 302; Fritz v. Western Union 'b Southwestern Tel. &c. Co. v. San- Tel. Co., 25 Utah 263, 71 Pac. 209. ders (Tex. Civ. App.), 138 S. W. 1181. 363 CONTRIBUTORY NEGLIGENCE. § 346 grounds to a recovery in this action is no greater than that of said T. T. had he lived. In this case you are instructed that what is known in law as "contributory negligence" on the part of the said T. T. when the injury was sustained is a bar to this action if he was guilty of contributory negligence. The court tells you that "contributory negligence" is such negligence on the part of the injured person whether it be acts of omission or commission, as alleged to produce the injury complained of. If you find from a preponderance of all the evidence that the said T. T. was guilty of any negligence as defined in this in- struction that helped to bring about or produced the ^injury which resulted in his death, then your verdict should be for the de- fendant. ° (3) The court instructs the jury that "contributory negli- gence" is such negligence on the part of plaintifif as helped to pro- duce the injuries complained of, and if the jury find, from a pre- ponderance of all the evidence in this case, plaintiff was guilty of any negligence that helped to bring about or produce the in- juries complained of, then, and in that case, the plaintiff can not recover in this action." (4) The court instructs the jury that by contributory negli- gence is meant negligence of the plaintiff contributing to the in- jury complained of.^ (5) The court instructs the jury that the doing of an act by the plaintiff which materially contributed to his injuries, even if you should find from the evidence that he did any such act, would not constitute contributory negligence unless you should find from the evidence that he was in fault in doing such act.^ (6) The court instructs the jury that by contributory negli- ° Thompson v. Southern Lumber ince of the jury by determining a Co., 104 Ark. 196, 148 S. W. 537. question of fact— whether or not the "Baltimore &c. R. Co. v. Young, plaintiff was guilty of contributory 153 Ind. 163, 54 N. E. 791. negligence— but that the jury were 'Sellersburg v. Ford, 39 Ind. App. left free to pass upon such question. 94, 79 N. E. 220. Indiana Union Trac. Co. v. Long, 'It was held that the foregoing 176 Ind. 532, 96 N. E. 604. instruction did not invade the prov- § 347 INSTRUCTIONS FORMS. 364 gence is meant negligence on the part of plaintiff directly con- tributing to the cause of his injury.^ (7) The court instructs the jury that under the common-law liability, if a defendant company is negligent, even if a defend- ant company fails to observe due care, yet if the plaintiff himself contributed to the injury, as a proximate cause of the injury, as the immediate cause of it, then the plaintiff can not recover. Al- though the defendant company is negligent itself, if the plaintiff contributed to the injury by his own negligence, as the proxi- mate cause, or immediate cause, then he can not recover.^" (8) The court instructs the jury that properly speaking, con- tributory negligence, as the very words import, arises when the plaintiff, as well as the defendant, has done some act negligently, or has omitted through negligence to do some act which it was their respective duty to do, and the combined negligence of the two parties has directly produced the injury.^^ (9) The court instructs the jury that contributory negligence is negligence on the part of the person injured which, concurring or co-operating with some negligence of the defendants, causes or contributes to cause or produce the injury complained of.^^ (10) The court instructs the jury that by the term "con- tributory negligence" is meant some act of negligence on the part of A. H. J., which, concurring with some negligence on the part of defendant company, caused or contributed to cause his injury and death, in that it Hmits the definition of contrib- utory negligence to some act of negligence on the part of J., and does not include any omission or negligence of J. which may have consisted in an omission or failure to perform an act, duty, or obligation incumbent upon him in the exercise of ordi- nary care.^' § 347. Contributory negligence presupposes negligence. — The court instructs the jury that the defendant's claim of con- ' Albrecht v. Morris, 91 Nebr. 442, " Southwestern Tel. &c. Co. v. San- 136 N. W. 48. ders (Tex. Civ. App'.), 138 S. W. "Cole V. Blue Ridge R. Co., 75 S. 1181. Car. 1S6, SS S. E. 126. " Texas &c. R. Co. v. Johnson, 48 " Caldwell v. Seaboard Air Line R. Tex. Civ. App. 135, 106 S. W. 773. Co., 73 S. Car. 443, 53 S. E. 746. .365 CONTRIBUTORY NEGLIGENCE. §348 tributory negligence on the part of plaintiff or some of his tenants presupposes the existence of negligence on the part of de- fendaint; for, if there was no negligence on the part of the de- fendant, there could be no contributory negligence on the part of plaintiff, or any of the said tenants." § 348. Duty to exercise ordinary care for one's own safety. — (i ) The court instructs the jury that if they believe from the evidence that the plaintiff, before reaching street, and the line of the defendant's railroad track, took such precautions with respect to danger and collision with trains approaching from the north on said track as a man of ordinary prudence and care would have done, under the circumstances, to avoid injury, then the jury may find that the plaintiff was not guilty of con- tributory negligence.^" (2) The court instructs the jury that if they find and believe from the evidence that the Car Company, on the occasion in question, was operating an electric car on its premises, and that its servants in charge of, managing, and controlling its said car, permitted the same to strike the beam or girder being hoisted by plaintiff, if you find that plaintiff was so hoisting a girder, and that the same was struck ; and if you further find and believe from the evidence that said servant, by the exercise of ordinary care on his part, might have avoided a collision of said car with the beam or girder so being hoisted by plaintiff, and that said collision could not have been avoided by the exercise of ordinary care on the part of plaintiff — then you will find a verdict in favor of plaintiff and against the defendant Car Company.^' (3) The .court instructs the jury that when it is said in these instructions that the plaintiff was required to exercise ordinary care for his own safety, it is meant that he was required to exer- cise that degree of care which an ordinarily prudent person situated as plaintiff was before and at the time of the accident, would have exercised for his or her own safety." ""That the instruction is sound in "Sack v. St. L. Car Co., 112' Mo. point of law may not be questioned." App. 476, 87 S. W. 79. Linforth v. San Francisco Gas &c. "Pierson v. Lyon, 243 111. 370, 90 Co., 156 Cal. 58, 103 Pac. 320. N. E. 693. See South Chicago &c. '"Washington Southern R. Co. v. R. Co. v. Kinnare, 216 111. 451, 75 Lacey, 94 Va. 460, 26 S. E. 834. N. E. 179; Chicago City R.' Co. § 34^ INSTRUCTIONS FORMS. 366 (4) The court instructs the jury that it was the duty of the plaintiff to use ordinary care to avoid injury to himself. "Or- dinary care" means such care as a person of ordinary caution and prudence would exercise under similar circum- stances, and a failure to exercise such care is negligence.^* (5) The court instructs the jury that if you believe from the evidence that the plaintiff, by using his faculties' with ordinary and reasonable care in looking out for danger, could have avoided injury on the occasion in question, and that he negli- gently failed to do so and thereby contributed to the injury, if you believe he was injured, then he can not recover in this case.^" (6) The court instructs the jury that the law places upon all persons the duty of exercising reasonable care to avoid injury, and even though the jury should believe, from the evidence, that the defendant was negligent and the plaintiff was injured thereby, if the evidence also shows that the injury would have been avoided by the exercise of ordinary care by the plaintiff, and that the plaintiff did not exercise such care, you should find the de- fendant not guilty.^" (7) The court instructs the jury that it was the duty of the plaintiff to have a reasonable regard for and pay such reasonable attention as a reasonable man under such circumstances should pay to the preservation of his own life and limb, and if the jury believe from the evidence that he did not on that occasion exer- cise such reasonable and ordinary care as the average reasonable man would exercise under like conditions, he can not recover in this action, whatever may have been his injuries, or whatever the negligence of the defendant, unless the negligence of the de- V. O'Donnell, 208 111. 267, 70 N. E. '"'This instruction stated a cor- 294. rect proposition of law, and, as the " Missouri &c. R. Co. v. Gist, 31 principle therein contained was not Tex. Civ. App. 662, 73 S. W. 857.' covered by any given instruction, we See also Turnbull v. New Orleans think its refusal constituted reversi- &c. R. Co., 120 Fed. 783, 57 C. C. A. ble error." Flynn v. Chicago &c. R. 151 ; Reed v. Spokane, 21 Wash. 218, Co., 250 111. 460, 95 N. E. 449. 57 Pac. 803 ; Wilder v. Great West- • " CuUen v. Higgins, 216 111. 78, 74 em Cereal Co., 130 Iowa 263, 104 N. N. E. 698. W. 434; Eichorn v. Missouri &c. R. Co., 130 Mo. 575, 32 S. W. 993. 367 CONTRIBUTORY NEGLIGENCE. § 348 fendant was gross, wilful, and intentional and exhibited an in- tentional purpose to hurt him.^^ (8) The court instructs the jury that if you find that at the time the injury was received the plaintitff was not exercising such care and caution as an ordinarily prudent person, under the cir- cumstances, would have exercised in walking along the sidewalk, then the plaintiff can not recover.^^ (9) The court instructs the jury that if you believe that the plaintiff did not exercise ordinary care to prevent injury to him- self, and that his failure to use ordinary care was the proximate cause of his injury, then he can not recover in this action; or should you find that any risk to which he may have been ex- posed was only such as was ordinarily incident to the employ- ment, in that event, also, your verdict should be for defendant.^^ (10) The court instructs the jury that there is another matter which I desire to mention to you with reference to the law which requires reasonable care and diligence on the part of the party injured. It means just such care and prudence as a reasonably prudent man would exercise when similarly engaged.^* (11) The court instructs the jury that in determining whether the plaintiff has used due care, the standard for the jury is the conduct of an ordinarily prudent, careful and sensible person, under the circumstances in question. If the jury conclude that the plaintiff has not exercised the care that an ordinarily prudent, careful and sensible person would have exercised for her own "This instruction was, on the facts S3 N. E. 246; San Antonio v. Potter, in evidence, approved over the ob- 31 Tex. Civ. App. 263, 71 S. W. 764; jections that in attempting to state CoUura v. Georgia R. &c. Co., 140 the rule of contributory negligence Ga. 573, 79 S. E. 475. Necessity of the essential element of "proximate" ordinary care on part of street car contribution was omitted, and that company, see Cincinnati Trac. Co. v. it failed to take into consideration Johnson, 32 Ohio C. C. 594. the doctrine of "last clear chance." '^ Galveston &c. R. Co. v. Henning Jansen v. Southern Pac. Co., S Cal. (Tex. Civ. App.), 39 S. W. 302. See App. 12, 89 Pac. 616. Chicago &c. R. Co. v. Pollard, 53 "^ Perrette v. Kansas City, 162 Mo. Nebr. 730, 74 N. W. 331 ; Fritz v. 238, 62 S. W. 448. For similar in- Western Union Tel. Co., 25 Utah structions, see Indianapolis v. Mul- 263, 71 Pac. 209. lally (Ind. App.), 77 N. E. 1132; " Reiter-Connolly Mfg. Co. v. Ham- Huntingburg v. First (Ind. App.), lin, 144 Ala. 487, 40 So. 280. § 349 INSTRUCTIONS FORMS. 368 protection under similar circumstances, then they must find that plaintiff has been guilty of negligence, irrespective of the par- ticular intelligence, knowledge or prudence of the plaintiff, whose conduct is brought into question.^^ § 349. Duty to avoid consequences of negligence of an- other. — (1) The court instructs the jury that the rule which requires one to avoid the consequences of another's negligence does not apply until such person sees the danger or has reason to apprehend it.^° (2) The court instructs the jury that, to entitle the plaintifif to a recovery in this action, the jury must find from a preponder- ance of the evidence that the injury complained of was caused by the negligence or by lack of ordinary care by the defendant or its servants and employes, and that the said T. T. did not directly contribute to the said accident or injuries which resulted in his death by any negligence or by want of prudence, or by his failure to exercise ordinary care for his own personal safety when the injury was sustained. If you find from the evidence in the case that the said T. T. failed to exercise ordinary care for his safety in attempting to put the belt on the pulley at the time and in the manner in which he did, and but for this concurring and co-op- erating negligent act on his part, if you find such act was neg- ligent, and without such negligent act his injury would not have been sustained, then your verdict should be for the defendant, and this should be your verdict notwithstanding you may also believe that the defendant lumber company was guilty of the neg- ligence complained of as set out in plaintiff's complaint.^^ § 350. Necessity that contributory negligence be the proximate cause of injury. — (1) The court instructs the jury that if you find that plaintiff was guilty of neghgence in try- ing to cross the track, and then changing her mind and turning back, yet if defendant's employes, by the use of ordinary care, ■discovered her danger in time, and had a clear opportunity to stop '"' Dobson V. Duncan, 90 S. Car. 414, " Thompson v. Southern Lumber n S. E. 875. Co., 104 Ark. 196, 148 S. W. 537. =" Wadley v. Dooly, 138 Ga. 275, 75 S. E. 153. 369 CONTRIBUTORY NEGLIGENCE. § 350 the car thereafter, or otherwise prevent the accident, then trying to cross or turning back, if any, was not contributory negligence on the part of the plaintiff, but the later negligence of defend- ant's employes, if any, is the proximate cause of the, injury.^^ (2) The court instructs the jury that if they believe that the platform in the proof described was in a dangerous condition, and they also believe that the plaintiff was negligent in the man- ner in which he backed into said hole on said platform, and that his injuries would not have been sustained but for such negli- gence on his part, then they shall find a verdict for the de- fendant.'" (3) The court instructs the jury that want of ordinary care was not a contributing cause to produce the injury unless there was a proximate connection between such injury and such want of ordinary care ; that is, it must appear from the evidence that there was such a relation between the plaintiff's fault, if any, and the injury, that such injury was a natural and probable result thereof.'" (4) The court instructs the jury that even if a passenger be guilty of negligence in placing himself in a dangerous position, it will not bar his right to recover damages if the injury was caused directly and proximately by the negligence of the car- rier.'^ (5) The court instructs the jury that a man may be careless and negligent of his receiving injury, and yet his negligence may not be contributory negligence.' It may not be a direct cause, or proximate; and, if the injury was inflicted by the defendant with- '^The instruction was held to be ordinary care,' and hence could not sound in law. Further, it was not have misled the jury." Sorensen v. objectionable on the ground that it J. I. Case Threshing Mach. Co., 129 assumed the existence of facts which Wis. 366; 109 N. W. 84. there was no evidence to prove. " Where the defendant's negligence Wahlgren v. Market St. R. Co., 132 is the proximate cause of an injury, Cal. 656, 62 Pac. 308. even though such negligence is com- " Louisville &c. R. Co. v. Carter bined with that of the plaintiff, the (Ky.), 112 S. W. 904. defendant is liable. Hence the fore- "The criticism is in the use of going instruction is correct. Doo- the word 'fault' which is not to be little v. Southern R. Co., 62 S. Car. commended, but, as used, it obvi- 130, 40 S. E. 133. ously referred back to 'such want of 24 — Branson's Inst. §351 INSTRUCTIONS FORMS. 37O out any direct help from the neghgence of the plaintiff, then the defendant would still be liable. If the injury could have been avoided, in spite of the plaintiff's negligence, by the exercise of due care on the part of the defendant, then the defendant vi^ould be liable, because that would mean that the plaintiff's negligence did not contribute to the injury, because it was not proximate or direct cause.^^^ § 351. Recovery notwithstanding contributory negligence — Humanitarian doctrine. — (1) The court instructs the jury that, although the plaintiff's intestate may have been guilty of negligence, and although that negligence may in fact have con- tributed to the accident, yet if the defendant or engineman of the work-train could, in the result, by the exercise of ordinary care and diligence, have avoided the accident which happened, then plaintiff's intestate's negligence will not excuse the defend- ant, and the plaintiff is eqtitled to recover.^^ (2) The court instructs the jury that it was the duty of the motorman of defendant in charge of the east-bound car which struck the wagon on which plaintiff was driving to keep a vigilant watch for persons and vehicles driving upon or approaching the track on which such car was being operated, and upon the first appearance of danger to any vehicle or person to stop the car in the shortest time and space possible with the means at his command, and if the jury find from the evidence that plaintiff was driving his wagon upon or so near the track of defendant as to be in danger of being struck by said east-bound car, and that de- fendant's motorman in charge thereof neglected to keep such vigilant watch or neglected to stop his car in the shortest time and space possible with the means at his command, when the danger of striking said wagon became apparent or should have become apparent if such vigilant watch had been kept, and that in consequence thereof the wagon upon which plaintiff was driving was struck and he was injured, then plaintiff is entitled to recover, even though the jury should believe from the evidence ''aBodie v. Charleston &c. R. Co., ilar instruction, see TurnbuU v. New 61 S. Car. 468, 39 S. E. 71S. Orleans &c. R. Co., 120 Fed. 783, 57 "Norfolk &c. R. Co. v. Spencer, C. C. A. 151. 104 Va. 657, 52 S. E. 310. For sim- 371 CONTRIBUTORY NEGLIGENCE. § 353 that he did not, under all the circumstances in evidence, exercise ordinary care in driving said wagon upon defendant's track at the time and place in question.^^ (3) The court instructs the jury that a plaintiff may recover damages for an injury caused by the defendant's negligence not- withstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. And in this case if you shall find from the evidence that the defendant's motorman in charge of defendant's car saw the plaintiff in peril and great danger on defendant's track ahead of said car at the crossing of Thirty-eighth street and C. avenue, and, after seeing the plaintiff's peril, failed to exercise ordinary care under the circumstances to avoid injuring plaintiff, and plaintiff thereby received injuries from jvhich he died as a proxi- mate result of said want of care on the part of defendant, then your verdict should be for the plaintiff notwithstanding the plain- tiff's want of ordinary care brought him into such position of peril.^* § 352. Comparative negligence. — The court instructs the jury that if you believe that the plaintiff and the defendant were both negligent, but the negligence of the plaintiff exceeded that of the defendant, or equaled it, then the plaintiff could not re- cover, and you should find for the defendant. ^° §353. Imputed negligence. — (1) The court instructs the jury that in determining whether or not the plaintiffs contributed " Kirchof v. United R. Co., 155 Mo. parison of such negligence being a App. 70, 135 S. W. 98. question for the jury, it was error to ** Indiana &c. Trac. Co. v. Myers, refuse" this charge. Central of Geor- 47 Ind. App. 646, 93 N. E. 888. For gia R. Co. v. McKey (Ga. App.), 79 similar instructions, see Louisville S. E. 378. See also, Panofif v. Chicago &c. R. Co. V. Calvert, 170 Ala. 565, &c. R. Co. (Wis.), 143 N. W. 1070; 54 So. 184 ; Ferryman v. Chicago &c. St. Louis &c. R. Co. v. Vernon (Tex. R. Co., 242 111. 269, 89 N. E. 980. Civ. App.), 161 S. W. 84. For in- "There being evidence of mutual struction held not open to objection negligence on the part of the driver that it entitled plaintiff to recover if of the automobile, as well as on the his negligence was equal to, or part of the defendant, and the com- greater than that of the defendant, § 353 INSTRUCTIONS FORMS. 372 by their negligence in the custody and care of their child, E., to her injury and death, you are to consider whether or not they exercised that degree of care, caution, and watchfulness over their said child, E., which was reasonable and proper for parents in their circumstances in life, as shown by the evidence.^* (2) The court instructs the jury that in determining whether or not the plaintiff in this case was guilty of contributory neg- ligence, you shall consider her own acts and conduct, and all the other circumstances surrounding the accident and injury, if any, to the plaintiff. And if you shall find from the preponderance of all the evidence that the plaintiff acted as a person of ordinary prudence under all the circumstances, you should find her free from contributory negligence, although you may find that her husband was guilty of negligence in the driving and manage- ment of his horse and vehicle. In other words, no negligence of the husband in the driving and management of said horse can be imputed to the plaintiff, if you find that she herself was free from any fault or negligence and was merely the passive guest of her husband, without any authority to direct or control the conduct or movements of her said husband in the driving and management of said horse.^' (3) The court charges you that contributory negligence is de- fensive matter. The defendant in this case will file special pleas setting up this defense to the first count of the "complaint, which charges simple negligence in general terms. The burden of proof is on the defendant to establish its special pleas to your reasonable satisfaction by the evidence in the case. The evidence tends to show that the plaintiff, a woman, on or about the time mentioned in the complaint, was approaching defendant's track for the purpose of crossing the same, at a public road crossing in said county, in a buggy drawn by a horse driven by plaintiff's father. The alleged negligence of plaintiff's father, if you find from the evidence that he was negligent as the court has defined see Southern R. Co. v. Nichols, 135 statement of the law. Further, the Ga. 11, 68 S. E. 789. use of "shall" or "should" is not ob- " Cornovski v. St. Louis Trans. Co., jectionable. Indianapolis St. R. Co. 207 Mo. 263, 106 S. W. 51. v. Johnson, 163 Ind. 518, 72 N. E. 571. " The instruction was an accurate 373 CONTRIBUTORY NEGLIGENCE. § 354 that term, is not imputable to the plaintiff in this case, unless you are reasonably satisfied from the evidence that the plaintiff's father was acting as her agent in driving said vehicle at the time, thereby making his acts, in view of the law, her own, or unless you are reasonably satisfied from the evidence that the plaintiff was at the time in a position to exercise authority or control over her father, the driver, or unless you are reasonably satisfied from the evidence that plaintiff and her father were at the time en- gaged in a joint enterprise, or in carrying out a common pur- pose, neither one having exclusive control over the vehicle in which they were riding.^* (4) The court instructs the jury that in determining whether the plaintiffs contributed, by their negligence in the custody and care of their child, to its injury and death, you may consider whether or not, they exercised that degree of care, caution, and watchfulness over their child in keeping him off the street and out of danger, which wa.s reasonable and proper for parents in their circumstances of life as shown by the evidence.^^^ (5) The court instructs the jury that, even if you believe, from the evidence, that the plaintiff's mother was guilty of negli- gence in permitting the plaintiff to go upon the street or that his brother was guilty of negligence in not taking proper care of him while upon the street, still such negligence, if any, upon their part can not be charged against the plaintiff, and it is not a defense to this suit.^^'' (6) The court instructs the jury that it was the duty of the plaintiffs, in the care and custody of their son, to have exercised such degree of care and prudence, in keeping him off defendant's railroad track and out of danger, which was reasonable and prudent under like circumstances, as shown by the evidence, and a failure to exercise such a degree of care and prudence would render plaintiffs guilty of negligence.°^° §354. Acts in emergencies. — (1) The court instructs the jury that if you believe from the evidence herein that the plain- ■" Louisville &c. R. Co. v. Calvert, "b Perryman v. Chicago City R. Co., 170 Ala. S6S, 54 So. 184. 242 111. 269, 89 N. E. 980. ''a Levin v. Metropolitan St. R. Co., "o Schmitt v. Missouri Pac. R. Co., 140 Mo. 624, 41 S. W. 968. 160 Mo. 43, 60 S. W. 1043. 8 355 INSTRUCTIONS FORMS. 374 tiff in this action, through the neghgence of the defendant, was placed in a situation where she must adopt a perilous alternative, or where, in the terror of an emergency, for which she was not responsible and for which the defendant was responsible, she acted wildly or negligently and suffered in consequence, such negligent conduct, under these circumstances, is not contributory negligence, for the reason that persons in great peril are not to be required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under or- dinary circumstances. In such a case the negligent act of the defendant is the proximate cause of the injury, and the plaintiff may have her action.^' (2) The court instructs the jury that the fact, if it be a fact, that J. W. by pursuing a different course might have escaped injury, does not make him guilty of contributory negligence. The proper inquiry is, considering his surroundings at the time, did he exercise such reasonable care for his own safety as would be expected of an ordinarily prudent man.*" (3) The court instructs the jury that when one is placed, by the negligence of another, in a situation of peril, his attempt to escape danger, even by doing an act which is in itself dangerous and from which injury results, is not contributory negligence such as will prevent him from recovering. If a man is in dan- ger, and, in order to avoid that danger, bona fide does something which is dangerous, that would not be considered in law con- tributory negligence.*^ § 355. Opportunity to escape from threatened danger. — The court instructs the jury that the fact, if it be a fact, that J. W. remained under the block at a place where it would likely strike him when it fell, until he was struck by it, after he had noticed that the chain was being slackened, would not constitute =" Hainlin v. Budge, 56 Fla. 342, 47 also Turnbull v. New Orleans &c. R. So. 825. For similar instruction, see Co., 120 Fed. 783, 57 C. C. A. 151; Lincoln Rapid Trans. Co. v. Nichols, Norfolk &c. R. Co. v. Spencer, 104 37 Nebr. 332, 55 N. W. 872, 20 L. R. Va. 657, 52 S. E. 310. A. 853. "Mitchell v. Charleston Light &c. "Reiter-Connolly Mfg. Co. v. Ham- Co., 45 S. Car. 146, 22 S. E. 767, 31 lin, 144 Ala. 487, 40 So. 280. See L. R. A. 577. 375 CONTRIBUTORY NEGLIGENCE. § 357 negligence on the part of said J. W. which would bar a recovery, if the jury find that said J. W. had no time to get out from un- der the block after he had such notice/^ § 356. Necessity for knowledge of danger. — The court in- structs the jury that the law holds no one responsible for exposing himself to a danger of which he knew nothing ; and could know nothing by the exercise of ordinary care, and of which he was under no obligation to inform himself. But whatever was in plain view, and could readily be seen, he must see, or must take the consequences of not seeing.*^ §357. Care required of infants. — (1) The court instructs the jury that in considering whether or not plaintiff by his own act contributed to his injuries you should take into considera- tion his age, intelligence, and discretion, and, if you find from the evidence that plaintiff did not possess the intelligence and discre- tion of an adult at the time of his injuries, then the jury may consider these facts in determining whether or not plaintiff was guilty of contributory negligence on the occasion in question.** (2) The court instructs the jury that if they believe from the evidence that the plaintiff, H. R. W., at the time of the injury was a child of tender years, and had boarded a car of the de- fendant company whilst the same was standing at the eastern terminus of the defendant's road, and that the agents and em- ployes of the defendant company knew, or could have known by the exercise of ordinary care, of his presence on said car, and that said child was standing on the step of said car, and that step was a place of danger for a child, that it was the duty of the agents or employes of said company to take notice of the dan- ger of the plaintiff; and if they believe from the evidence that the conductor or motorman allowed the car to start while the " Reiter-Connolly Mfg. Co. v. Ham- Turnbull v. New Orleans &c. R. Co., lin, 144 Ala. 487, 40 So. 280. See 120 Fed. 783, 57 C. C. A. ISl. also Benedict v. Port Huron, 124 " Rosenbaum v. Shoffner, 98 Tenn. Mich. 600, 83 N. W. 614 ; Camp v. 624, 40 S. W. 1086. For like instruc- Chicago &c. R. Co., 124 Iowa 238, 99 tion, see Kyle v. Southern Elec. &c. N. W. 735; Fritz v. Western Union Co., 174 Pa. 570, 34 Atl. 323. Tel. Co., 25 Utah 263, 71 Pac. 209; "Ludwig v. Williams Coop. Co., 156 Mo. App. 117, 136 S. W. 749. § 357 INSTRUCTIONS FORMS. ' 376 plaintiff occupied such position, which action in permitting the said plaintiff to remain on the car resulted in the injury to said plaintiff, then they shall find for the plaintiff; provided the jury shall believe from the evidence that the plaintiff, by reason of his age and want of judgment and discretion, was not guilty of con- tributory negligence as heretofore defined in these instructions.*' (3) The court instructs the jury that the question also will arise, what would amount to due care upon the part of a child of eight years of age ? Now, I charge you that due care in the child eight years old is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation, and is determined by the jury. When of tender years, and consequent immaturity of understanding, a child is not amenable to so high a standard of diligence in regard to his or her own safety as that which adults are obliged to observe. Such care as the capacity of the particular child enables it to use naturally and reasonably is what the law requires upon the part of the child." (4) The court instructs the jury, if they believe from the evi- dence that S. W., the infant plaintiff, was warned of the danger in playing upon the hand car, and was of sufficient intelligence to comprehend the danger incident to doing so, yet he persisted in playing with said machine, the court instructs the jury that such action on his part amounts to contributory negligence, such as will bar his right of recovery, although they may further be- lieve that it (was) grossly negligent in the defendant company to leave said ma'chine where it was leff*^ (5) The court instructs the jury that although they may be- lieve from the evidence the defendant was guilty of negligence, '' Richmond Trac. Co. v. Wilkin- " Illinois Cent. R. Co. v. Wilson, 23 son, 101 Va. 394, 43 S. E. 622. See Ky. L. 684, 63 S. W. 608. For other Washington &c. R. Co. v. Quayle, 95 instructions on contributory negli- Va. 741, 30 S. E. 391. gence of infants, see Chambers v. " Stewart v. Southern Bell Tel. &c. Milner &c. R. Co., 143 Ala. 2SS, 39 Co., 124 Ga. 224, 52 S. E. 331. See So. 170; Stewart v. Southern Bell also McDonald v. Metropolitan St. R. Tel. &c. Co., 124 Ga. 224, 52 S. E. Co., 80 App. Div. 233, 80 N. Y. S. 331; McDonald v. Metropolitan St. 577; Chambers v. Milner &c. R. Co., R. Co., 80 App. Div. 233, 80 N. Y. S. 143 Ala. 255, 39 So. 170. 577. 377 CONTRIBUTORY NEGLIGENCE. § 357 Still if they shall further believe from the evidence plaintiff failed to exercise that degree of care and caution which persons of his age, capacity, and experience may reasonably be expected to ordinarily use, in the same situation and under like circum- stances, and that but for the failure to use such care and cau- tion the injury to him would not have occurred, the plaintiff was guilty of contributory negligence, and the law is for the defend- ant, and the jury should so find/* (6) The court instructs the jury that, so far as concerns this defense which is interposed by the defendant company, in which they allege that the boy was guilty of contributory negligence, the burden is upon the defendant company in order to establish that defense to prove by a fair preponderance of the evidence to the satisfaction of the jury that the boy was guilty of con- tributory negligence. If you should find by a preponderance of the evidence in the case that the defendant company was guilty of negligence in the particulars in issue here, and as the result of that negligence proximately and directly the plaintiff was injured, it would then be necessary for you further to inquire as to whether or not the defendant company has shown by a fair preponderance of the evidence that the boy was guilty of con- tributory negligence. If you should find by such preponderance of the testimony that C. A., the plaintiff, was guilty of contribu- tory negligence, and that that contributory negligence directly and proximately contributed to this injury, then you should find for the defendant. In determining the question whether or not C. A. was -guilty of contributory negligence to such an extent as directly and proximately and materially to contribute tO' the injury which he suffered, it is the duty of the jury to take into consideration the boy's age and all of the circumstances sur- rounding him, his experience or lack of experience, his knowl- edge or lack of knowledge, the amount of prudence and care and judgment which would ordinarily and reasonably be expected of a boy of that age under the circumstances and conditions shown by the testimony in this case. That is the rule by which the question of whether or not he is guilty of contributory negligence is to be measured by the jury. You should not apply to the " Illinois Cent. R. Co. v. Wilson, 23 Ky. L. 684, 63 S. W. 608. § 357 INSTRUCTIONS FORMS. 378 plaintiff in the case the same rules you would apply to a grown man. You should make allowances for his youth, and in attempt- ing to determine the question of his contributory negligence or the lack of it, inquire whether or not he exercised such care as would reasonably and ordinarily be expected of a boy of his age and intelligence and experience under like circumstances and conditions.^" (7) The court instructs the jury that the law made it the duty of the plaintiff, J. H., to exercise such ordinary care for his own safety as children of his age, intelligence and experience usually exercise under similar circumstances, but no more ; and if the jury believe from the evidence that the plaintiff failed to exercise such ordinary care for his own safety and by such failure upon his part so far contributed to bring about his injuries that, but for such failure, if he so failed, he would not have been injured, the law is for the defendant, and the jury should so find.^'^ (8) The court instructs the jury that the same degree of care and prudence in avoiding danger is not required from a child with less prudence, discretion, and understanding as from an adult, if you find from the evidence that plaintiff possessed less prudence, discretion, and understanding than an adult.*"'' (9) The court instructs the jury that the conduct of an infant is not of necessity to be judged by the same rules which govern that of an adult ; that while it is the general rule in regard to an adult or grown person that, to entitle him or her to recover dam- ages for an injury resulting from the fault or negligence of an- other, he or she must have been free from fault, sugh is not the ■"Akin V. Bradley Engineering &c. Co. v. Rodriguez (Tex. Civ. App.), Co., 51 Wash. 658, 99 Pac. 1038. See 133 S. W. 690 (boy S years of age) ; also Pierce v. Southern R. Co., 8 Ga. Texas &c. R. Co. v. Ball, 38 Tex. App. 426, 69 S. E. 494 (child 15 years Civ. App. 279, 85 S. W. 456 (boy 11 of age) ; McGuire v. Richard Guth- years of age) . "Immature years" not mann Transf. Co., 234 111. 125, 84 N. objectionable, see Stephenville &c. R. E. 723 (boy 7 years of age) ; Indian- Co. v. Voss (Tex. Civ. App.), 159 S. apolis Southern R. Co. v. Emmerson W. 64. (Ind. App.), 98 N. E. 895 (girl 16 "a Louisville R. Co. v. Hofgesand, years of age). See Herron v. High 31 Ky. L. 976, 104 S. W. 361. Ground Dairy Co., 153 App. Div. ""bittner Brick Co. v. Killian, 67 338, 138 N. Y. S. 3 (boy less than Nebr. 589, 93 N. W. 951. 9 years of age) ; Mexican Cent. R 379 CONTRIBUTORY NEGLIGENCE. § 358 rule in regard to an infant of tender years. The care and caution required of a child is according to its maturity and capacity Avholly, and this is to be determined by the circumstances of the case and the evidence before the jury, and the law presumes that a child between the ages of 7 and 14 years can not be guilty of contributory negligence, and, in order to establish that a child of such age is capable of contributory negligence, such presumption must be rebutted by evidence and circumstances establishing his maturity and capacity.* °° § 358. Care required of blind persons. — The court in- structs the jury that it must appear from the evidence that the plaintiff did not in any way contribute to the happening of the accident in question by any negligence on his part ; that is, by his own want of ordinary care. The plaintiff, on his part, was un- der obligation to use ordinary care to prevent injury when pass- ing over any sidewalk; and if he failed so to do, and his failure in any way contributed to the happening of the accident in ques- tion, then he can not recover herein. The evidence shows with- out dispute that he was blind, and this fact should be considered by you in determining what ordinary care on his part would re- quire when he was attempting to pass over one of the side- walks of this city.*"* *'<= Richmond Trac. Co. v. Wilkin- plaintiff's blindness is simply one of son, 101 Va. 394, 43 S. E. 622. the facts which the jury must give ""It was contended that the ad- consideration in finding whether he mitted fact of plaintiff's blindness did or did not act with the care made it the court's duty to instruct which a reasonably prudent man that a blind person who attempts to would ordinarily exercise when bur- use the public streets "must exercise dened by such infirmity." It was fur- a higher degree of care and caution ther held that, as a more specific in- than a person ordinarily would be ex- struction was not requested, it was pected or required to use had he full not error for the trial court to omit possession of his sense of sight." to amplify the instruction given so The higher court says : "We can not as to put more emphasis upon the fact give this proposition our assent, of blindness as an element for the * * * The streets are for the use jury's consideration in determining of the general public without discrim- whether the plaintiff exercised rea- ination. * * * The law casts sonable care. Hill v. Glenwood, 124 •upon one no greater burden of care Iowa 479, 100 N. W. 522. than upon the other. * * * The § 359 INSTRUCTIONS FORMS. 380 § 359. Care required of drunken persons. — The court in- structs the jury that if you find and beheve from all the evidence that the plaintiff, F. H. G. V., directly contributed to his injury and death by his own negligence or want of ordinai^y care at the time and place of falling into the excavation in question, then plaintiff can not recover in this case and your verdict should be for the defendant; and in this connection you are further in- structed that the law does not permit any one to voluntarily in- capacitate himself from the ability to exercise ordinary care for his own safety, and then to recover for an injury to which his own want of care, so caused, had directly contributed, nor can the widow of a man, injured while so incapacitated and through a want of care so caused, recover for his death brought about by such injury. If the jury do find from the evidence in this cause that said deceased fell into the excavation in question while in a state of intoxication, and that such intoxication directly con- tributed to the happening of such injury, and that such injury would not have occurred but for such intoxication, then your verdict will be for the defendant/^ §360. Presumption of contributory negligence. — (1) The court instructs the jury that if you believe from the evidence that the death of the deceased was caused by the negligence of the defendant company, a recovery can not be defeated on the ground of contributory negligence unless it appears from the evidence that the deceased himself failed in the exercise of ordi- nary prudence and that such failure so contributed to the injuiy that it would not have occurred if he had been without fault. Contributory negligence will not be presumed, but must be proved by a preponderance of the evidence." §361. Burden of proof of contributory negligence. — (1) The court instructs the jury that contributory negligence is a matter of defense, to be alleged in the answer and proved to exist by a preponderance of the evidence, and whether there is suffi- cient evidence to overcome the presumption of due care which "Voelker v. Hill-O'Meara Const. ""St. Louis &c. R. Co. v. Hitt, 76 Co., 153 Mo. App. 1, 151 S. W. 907. Ark. 227, 88 S. W. 908. 381 CONTRIBUTORY NEGLIGENCE. § 36 1 arises in plaintiff's favor founded on instincts of self-preserva- tion is a question for the jury." (2) The court instructs the jury that on the issue of contrib- utory negligence the burden of proof is on the defendant, and unless you believe, by a preponderance of the evidence, that plaintiff was guilty of negligence causing or contributing to cause his injuries, then you will find that he was not guilty of such neg- ligence.°° (3) The court instructs the jury that, if there. is no evidence upon the question of contributory negligence on the part of the plaintiff, or if the evidence upon that subject is equally balanced, then you should find, that the plaintiff was free from con- tributory negligence; and if you find there is no evidence upon the question of defendant's negligence, or if the evidence upon that question is equally balanced, or if the preponderance of the evidence is in favor of the defendant on this question, then you should find that the defendant is not guilty of con- tributory negligence.^® (4) The court instructs that the burden of proving contrib- utory negligence of the plaintiff is upon the defendant."^ (5) The court instructs the jury that, in order to defeat a re- covery on the ground of contributory negligence on plaintiff's part, the defendant must satisfy the jury by preponderating evidence of two facts: first, that the plaintiff was negligent; and second, that such negligence directly contributed to the in- jury.°* (6) The court instructs the jury that, if the defendant relies "Shrank v. Chicago &c. R. Co., 53 Pac. 737; Cornovski v. St. Louis 159 Mo. App. 299, 140 S. W. 319. Trans. Co., 207 Mo. 263, 106 S. W. "Cameron Mill &c. Co. v. Ander- 51; Louisiana &c. R. Co. v. Ratcliffe, son, 34 Tex. Civ. App. 229, 78 S. W. 88 Ark. 524, 115 S. W. 396; Sellers- 8. burg V. Ford, 39 Ind. App. 94, 79 N. •^ Wellington v. Reynolds, 177 Ind. E. 220; Wistrom v. Redlick, 6 Cal. 49, 97 N. E. 155. App. 671, 92 Pac. 1048. Burden of "Glass V. William Heflfron Co., 86 proof on plaintiff, see Conway v. Ohio St. 70, 98 N. E. 923. For sim- Waterbury, 84 Conn. 345, 80 Atl. 83. ilar instructions, see Phillips v. St. "* Philadelphia &c. R. Co. v. An- Louis Southwestern R. Co. (Tex. Civ. derson, 72 Md. 519, 20 Atl. 2, 8 L. App.), 136 S. W.«542; Harrington v. R. A. 673, 20 Am. St. 483. Eureka Hill Min. Co., 17 Utah 300, § 361 INSTRUCTIONS FORMS. 382 upon the contributory negligence of the plaintiff to defeat the plaintiff's action, the burden of proving such contributory neg- ligence rests on the defendant, and it will not avail the defend- ant unless it has been established by preponderance of the evi- dence.^' (7) The court instructs the jury that the burden is upon the defendant to show contributory negligence by a fair preponder- ance of the evidence; but if the evidence as a whole, by whomso- ever produced, does establish such contributory negligence, then it will avail the defendant and prevent the plaintiff from recov- ery."" "" Washington &c. Elec. R. Co. v. " Indianapolis Trac. &c. Co. v. Mil- Quayle, 95 Va. 741, 30 S. E. 391. ler, 40 Ind. App. 403, 82 N. E. 113. CHAPTER XXXVIII. CORPORATIONS. Section Section 362. Recovery of expenses of promo- 366. Application of bonus given by tion. citizens. 363. False representations by prorno- 367. Corporate agents. ters. 368. Paper executed by officers. 364. Notice of charter to subscribers. 369. Sales to officers. 365. Defenses to action for unpaid 370. Payment for legal services ren- subscription. dered by officers. § 362. Recovery of expenses of promotion.^The court in- structs the jury that if they beheve the evidence in this case, their verdict should be for the plaintiff; and if they believe from the evidence that the defendant accepted the benefit of contracts made by plaintiff's testator, and money paid out by him, then it would be liable to the plaintiff for the amount of money so paid out by her testator, provided the amount paid was reasonable.^ § 363. False representations by promoters. — The court instructs the jury that, if they believe from the evidence that at the time the defendant entered into the contract by which he subscribed to shares of stock in a company to be incor- porated in accordance with the terms of the prospectus and con- tract introduced in evidence, it was represented to said defend- ant by the party procuring his subscription that the whole proceeds of the capital stock of said company should be invested in the payment for and improvement of certain real estate, but that in fact it had already been agreed between the parties engaged in procuring the organization of said company to pay over the sum of $ to said parties as promoters, or otherwise, then said false representation rendered said contract of subscription voidable at the instance of said defendant, and they must find ' Berlin v. Sheffield Coal &c. Co., 124 Ala. 322, 26 So. 933. 383 § 364 INSTRUCTIONS FORMS. 384 for said defendant on this issue, unless, after full knowledge of the falsity of said misrepresentation, said defendant elected to ratify and confirm his subscription as aforesaid. "Confirmation rnust be a solemn and deliberate act. When the original transact tion is infected with fraud, the confirmation of it is so incon- sistent with justice, and so likely to be accompanied with impo- sition, that the court watches with the utmost strictness, and does not allow it to stand but on the clearest evidence."^ § 364. Notice o£ charter to subscribers. — ^The court in- structs the jury that if they find from the evidence that the charter of the plaintiff company was lodged for record in the office of the secretary of the commonwealth of on , , then the defendant was bound to take notice of it in any dealings he thereafter had with said plaintiff company, and that if he paid any instalment on his stock thereafter, or participated in a stockholders' meeting thereafter, he is thereby estopped from denying knowledge of the terms and provisions of said charter, however much said charter varied from his contract of subscrip- tion, and that he thereby ratified and acquiesced in said charter, and can not now avail himself of any such variance, and they must find for the plaintiff on special pleas , .^ § 365. Defenses to action for unpaid subscription. — The court instructs the jury that if they find from the evidence that on , , there were bona fide subscribers to the capital stock of plaintiff company to the amount of $ -, then the entry made by the treasurer of the company on the books of said company under date of , , of $ , of said stock standing in the names of H. L. and others, part of which was marked, "Stock not issued," and part, "Turned into company," is not a defense that can be availed of in this cause, and the jury must find for the plaintiff on special plea No. .* = West End Real Estate Co. v. = West End Real Estate Co. v. Clai- Claiborne, 97 Va. 734, 34 S. E. 900. borne, 97 Va. 734, 34 S. E. 900. For instruction in action to recover *West End Real Estate Co.v. Clai- purchase-price of stock, see McEl- borne, 97 Va. 734, 34 S. E. 900. wee V. Chandler, 198 Pa. 575, 48 Atl. 475. 385 CORPORATIONS. § 368 § 366. Application of bonus given by citizens. — The court instructs the jury that, was this amount of money subscribed by the citizens of H., at the time it was divided by these men, a fund to be used for the purpose of making the enterprise talked of a success, or was it subscribed and used for the purpose of or- ganizing this corporation? If it was an asset of the corporation, as I have stated, it can not be so divided, and S. would be liable for five hundred dollars. If, at the time this agreement was made — this meeting was had — it was talked over that this money which had been raised by the citizens for the purpose of carry- ing on this enterprise should be divided by these people who had united their energies and funds for the purpose of carrying on and promoting this enterprise ; that the money actually went into the corporation; that they had the benefit of it; and that at the time it was not the property of the corporation; that no cor- poration was then organized and in existence — if this be true, then your verdict should be, "No cause for action."^ § 367. Corporate agents. — The court instructs that if a corporation knowingly and voluntarily permit [s] a person to hold himself out to the world as its agent, said corporation will be bound as principal to those dealing with such person to act upon the faith that such agency exists ; and this is true irrespect- ive of whether or not an agency in fact exists.* § 368. Paper executed by officers. — The court instructs the jury that if they find from the evidence that G. A. F. loaned to F. S. R. $ , and this money was spent by said R. for the benefit of the Transfer Company, still this fact, of itself, would not authorize you to find the verdict for plaintiff; but if- the corporation defendant, however, having used the money borrowed personally by its president giving its note to the plain- This was an instruction in an ac- divided and applied on the stock sub- tion by the receiver of a corporation scriptions and that it was so cred- for an%mount alleged to be due on ited. Held that the charge correctly a stock subscription. It appeared stated the law of the case. McDer- from the evidence that, prior to the mott v. Squier, 124 Mich. 523, 83 N. ■completion of the organization the W. 287. stockholders agreed that a bonus "Italian-Swiss Agricultural Colony which they were to receive should be v. Pease, 194 111. 98, 62 N. E. 317. 25 — Branson's Inst. § 369 INSTRUCTIONS^FOEMS. 386 tiff for that amount, then there is good consideration for the note, and the company would be bound.'' § 369. Sales to officers. — The court instructs the jury that the fact that L. was a stockholder and the owner of a majority of the capital stock of the defendant, if the jury believe that he was such owner, does not make a sale to him a sale to the com- pany, nor a contract made by him a contract of the company, un- less he had authority to act for the company, and did act for the company.* § 370. Payment for legal services rendered by officers. — (i) The court instructs the jury that if an officer or director of a corporation renders services to the corporation that are not re- quired of him by his duties as such officer or director, but are such as are properly performed by an attorney, he may, in the absence of any agreement to render such services without charge or understanding that they are so rendered, recover reasonable compensation therefor." (2) The court instructs the. jury that if they believe and find from the evidence that prior to the incorporation of defendant the plaintiff, at the request of the organizers and incorporators of the defendant corporation, performed certain services as a lawyer in the matter of the preparation of the articles of incorporation and procuring the defendant's incorporation; that there was at no time any agreement or promise on the part of plaintiff not to charge for such services, and at the time of the rendition of such services the plaintiff intended to charge therefor; and that such services were rendered under such circumstances that the said organizers and incorporators expected, or ought to have expected, that they were to be paid for — then the jury are authorized to find that there was an implied promise to pay the reasonable value of such services, even though there was no express promise or agreement on the part of said organizers or incorporators, or on the part of the defendant, to pay for such service*. And ' Anderson Transf . Co. v. Fuller, ' Taussig v. St. Louis &c. R. Co., 174 111. 221, 51 N. E. 251. 186 Mo. 269, 85 S. W. 378. 'Crown Coal &c. Co. v. Taylor, 1 184 111. 250, 56 N. E. 328. 387 CORPORATIONS. § 3/0 if you find that there was such implied promise, and that the de- fendant accepted and operated under the certificate of incor- poration procured by the plaintiff, then the defendant is liable to plaintiff for the reasonable value of the services rendered by him in preparing the articles of incorporation and procuring the in- corporation of the defendant, not exceeding $ , and you will include what you may believe to be the reasonable value of this service (not exceeding $ ) in the plaintiff's damages if you conclude to find for the plaintiff, notwithstanding said sei-vices were rendered before the defendant was incorporated. But you should bear in mind that this item here mentioned is part of the entire bill mentioned in the preceding instruction, and not in ad- dition thereto.^" (3) The court instructs the jury that although you should find that plaintiff rendered the services in question, or some of them, yet if you believe from the evidence and circumstances shown in evidence that the services so rendered, or any part thereof, were rendered and accepted with the mutual understand- ing on the part of plaintiff and defendant at the time they were rendered and accepted that they were not to be paid for, then as to such of said services as you may find from the evidence were rendered and accepted on the aforesaid mutual understanding, your verdict must be for the defendant.^^ (4) The court instructs the jury that if you find from the evi- dence that plaintiff and H., being directors of the defendant, were, on or about , , by resolution of the board of di- rectors, appointed a committee of the board of directors to ob- tain a franchise from the county court of county, and to take all necessary steps in that behalf, and that plaintiff and said H. accepted such appointment, then, although the jury may be- lieve that the services sued for and attempted to be described in the third item of the plaintiff's account filed with his petition herein, relating to preparing ordinances or orders for franchises from county court and services in connection with procuring the same, were rendered by plaintiff, yet if you find from the evidence that any part of said services were rendered by him jointly with "Taussig V. St. Louis &c. R. Co., "Taussig v. St. Louis &c. R. Co., 186 Mo. 269, 85 S. W. 378. 186 Mo. 269, 85 S. W. 378. § 37° INSTRUCTIONS FORMS. 388 said H., and as a member of said committee, or by said plaintiff alone as a member of said committee, then such part of said services as the jury find from the evidence were so rendered by the plaintiff was gratuitous, and the plaintiff can not recover anything in this action for such part/^ (5) The court instructs the jury that although the plaintiff was an officer and director of the defendant corporation, yet if the jury believe and find from the evidence that at the request of the directors or at the request of the general manager of the de- fendant corporation he rendered service to such corporation as a lawyer, and that there was at no time any agreement or promise on the part of plaintiff not to charge for such services, and that at the time of the rendition of such services plaintiff intended to charge therefor, and that such services were rendered under such circumstances that the defendant expected or ought to have ex- pected that they were to be paid for, then the jury are authorized to find that there was an implied promise to pay a reasonable value for such services, even though there was no express con- tract or agreement by defendant to pay for such services ; and if you find that there was such implied promise, then your verdict should be for the plaintiff, and you should assess his damages at such sum, not exceeding $ , as you may believe from the' evi- dence such services were fairly worth, with interest thereon at per cent, per annum from the date of the institution of this suit, , , to the present time.^' (6) The court instructs the jury that although you may find that plaintiff rendered services to defendant, and defendant ac- cepted them, yet if you find from the evidence and circum- stances shown in evidence that at the time they were rendered and accepted it was understood by and between plaintiff and de- fendant that any part of said services were not to be considered as services rendered by plaintiff as an attorney at law, but as a director of the defendant company, then as to such part of said services the plaintiff can not recover, and as to such part of said services your verdict must be for the defendant.^* "Taussig V. St. Louis &c. R. Co., "Taussig v. St. Louis &c. R. Co., 186 Mo. 269, 85 S. W. 378. 186 Mo. 269, 85 S. W. 378. "Taussig V. St. Louis &c. R. Co., 186 Mo. 269, 85 S. W. 378. CHAPTER XXXIX. CRIMINAL LAW GENERAL PRINCIPLES. Section 371. Alibi. 372. Intent. 373. Malice. 374. Insanity. 375. Accomplic&s and accessories. 376. Presumption of innocence. 377. Presumptions from flight or at- tempts to escape. 378. Presumption from surrender of defendant to authorities. 379. Burden of proof. 380. Reasonable doubt. 381. Circumstantial evidence. 382. Good character of accused. Section 383. Testimony of defendant in his own behalf. 384. Admissions and confessions. 385. Testimony of witnesses before examining magistrates. 386. Resisting arrest. 387. Right to consider demeanor of witnesses. 388. Duty to reconcile evidence if pos- sible. 389. Evidence of work of blood- hounds. 390. Finding of guilt against more than one defendant. § 371. Alibi. — (1) The court instructs the jury that if you believe from the evidence in this case that the plea of an alibi was not interposed in good faith or that the evidence to sustain it is simulated, false, and fraudulent, then this is a discrediting cir- cumstance to which you may look in connection with all the other evidence in determining the guilt or innocence of the defendant.^ (2) The court instructs the jury that an alibi simply means that the accused was at another place at the time the crime charged is alleged to have been committed, and therefore could not have committed it. All the evidence should be carefully considered by you, and, if the evidence on this subject, considered with all the other evidence, is sufficient to raise a reasonable doubt as to the guilt of the defendant, you should acquit him. The accused is not required to prove an alibi beyond a reasonable doubt, or even by a preponderance of evidence. It is sufficient to justify an acquittal if the evidence upon that point raises a reasonable 'Jones V. State (Ala.), 58 So. 250. 389 ; T,7l INSTRUCTIONS FORMS. 39O doubt of his presence at the time and place of the commission of the crime charged, if you find that a crime was committed. And you will understand, also, that the attempt of the accused to prove an alibi does not shift the burden of proof from the prose- cution, but that the prosecution is bound to prove his presence beyond a reasonable doubt.^ (3) The court instructs the jury that in this case what in the law is known as an alibi, that is, that the defendants, and each of them, were at another place at the time of the burning of the stacks, so far as the same is relied on by the defendants, to ren- der the proof of an alibi satisfactory to the jury the evidence must cover the whole of the time of the setting of said fires, if the jury believe, from the evidence, said stacks were set on fire, so as to render it impossible or very improbable that the defendants, or any of them, could have committed the act.^ (4) The court instructs the jury that the burden of proving the presence of the defendants, or either of them at the time and place of the alleged burglary, devolves upon the state, and the state must prove beyond a reasonable doubt that they were pres- ent at the time of the alleged commission of the offense. It does not devolve upon the defendants to prove that they were not present. So that after a full and fair consideration of all the facts and circumstances in evidence, whether arising from the state's evidence, or that adduced by the defendants, you have a reasonable doubt as to whether defendants were at the place of the alleged crime at the time of its commission, or were at an- other place, you are bound to give the defendants the benefit of such doubt, and acquit them.* (5) The court instructs the jury that the defense in this case is what is known in law as an "alibi" ; that is, that the defendants were not present at the time and place of the commission of the ofifense charged in the indictment, if any such offense has been committed, but that they were at that time at another and differ- ent place. As to this defense, you are instructed that it is not " People V. Lang, 142 Cal. 482, 76 * State v. Hale, 1S6 Mo. 102, 56 S. Pac. 232. See People v. Glover, 141 W. 881. See also People v. Pearsall, Cal. 233, 74 Pac. 745. SO Mich. 233, 15 N. W. 98. ' Creed v. People, 81 111. 565. 391 CRIMINAL LAW. § 37I necessary for defendants to prove an alibi to your satisfaction, beyond a reasonable doubt, nor by a preponderance of the tes- timony, but if, after a full and fair consideration of all the facts and circumstances in evidence, you entertain a reasonable doubt as to whether or not the defendants were present at the time and place of the. commission of the offense charged in the in- dictment, if such offense has been committed by any one, it will be your duty to give the.defendants the benefit of such doubt and acquit them.° (6) The court instructs the jury that one of the defenses in- terposed by the defendant in this case is what is known as an alibi, that is, that the defendant was at another place at the time of the commission- of the crime. The court instructs the jury that such defense is as proper and legitimate i£ proven as any other and all evidence bearing upon that point should be carefully considered by the jury. If, in view of all the evidence, the jury have a reasonable doubt as to whether the defendant was in some other place when the crime was committed, they should give the de- fendant the benefit of the doubt and find him not guilty. As re- gards the defense of an alibi, the jury are instructed that the de- fendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal — it is sufficient if the evidence raises a reasonable doubt of his presence at the time and place of the commission of the crime charged.® (7) The court instructs the jury that if you do not believe from the evidence that defendant was present at the time and place when and where the offense, if any, was conimitted, but that he was at some other and different place, or if you have a reasonable doubt as to whether this is the case, then you will find him not guilty.' The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and if you have a reasonable doubt of his guilt you will acquit him." (8) The court instructs the jury that in this case the defend- ' State V. Hale, 156 Mo. 102, 56 S. 'Fowler v. State (Tex. Cr.), 148 W. 881. S. W. 576. ' McLain v. State, 18 Nebr. 154, 24 N. W. 720. § 372 INSTRUCTIONS FORMS. 392 ant has interposed the defense of what in legal phraseology is termed an "alibi" ; that is, that the defendant was at said time at another and different place from that at which said offense is alleged to have been committed, and therefore was not, and could not have been, the person who committed said offense. Now if you have a reasonable doubt as to the presence- of the defend- ant at the place and at the tiriie where said offense is alleged to have been committed, you will find the defendant not guilty and so say by your verdict.* (9) The court instructs the jury that, an alibi, when estab- lished, furnishes' the best of defenses, because a man can not be in two places at one and the same time; but it is your duty to examine such evidence carefully to determine its truth or falsity.** §372, Intent. — (1) The court instructs the jury that to constitute the offense charged in this case the intent alleged in the indictment is necessary to be shown, but direct and positive testimony is not necessary to prove the intent. It may be inferred from' the facts and circumstances shown by the evidence ; and if you believe from the evidence, beyond a reasonable doubt, that the shooting, as alleged in the indictment, was done deliberately, and was likely to be attended with dangerous consequences, the malice or intent requisite to make out this case as charged will be presumed.* (2 ) The court instructs the jury that although it is the law in this state that a criminal offense consists of a violation of a public law, in the commission of which there must be a union or joint operation of act and intention, or criminal negligence, yet where, without intoxication, the law will impute to the act a criminal intent, as in the case of wanton killing without provo- cation, voluntary drunkenness is not available to disprove such intent.'" (3) The court instructs the jury that the intent with which an act is done is an act or emotion of the mind seldom, if ever, capable of direct and positive proof, but it is to be arrived at by "Crowell V. State (Tex. Cr.), 148 'Conn v. People, 116 111. 458, 6 N. S. W. 570. Harris v. Neal, 153 Mich. E. 463. 57, 116 N. W. 535. "Upstone v. People, 109 111. 169. 393 CRIMINAL LAW. § 374 such just and reasonable deductions oi" inferences from the acts and facts proved^ as the guarded judgment of a candid and cau- tious man would ordinarily draw therefrom. The law warrants the presumption, or inference, that a person intends the results or consequences to follow an act which he intentionally com- mits, which ordinarily do follow such acts. If a person make an assault on another and death ensues, the presumption is war- ranted that he intended to commit murder, if there is no evi- dence tending to show that he intended a lesser injury. If you find the defendant committed the assault, it will be your duty from the evidence to determine his intent in so doing by the surrounding circumstances and all the evidence in the case before you which tends to show the intent.^^ § 373o Malice. — The court instructs the jury that malice includes not only anger, hatred and revenge, but every other un- lawful and unjustifiable motive. Malice is not confined to ill- will toward an individual, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done with a wicked mind, where the fact has been attended with such circum- stances as evince plain indications of a heart regardless of social duty, and fatally bent on mischief; hence malice is implied from any deliberate or cruel act against another, however sud- den, which shows an abandoned and malignant heart.^^ §374. Insanity. — (1) The court instructs the jury that every person is presumed to be sane and rational, unless the fact is proved otherwise by a preponderance of the evidence, and you are to treat the acts of the defendant at and subsequent to the fire, as shown by the evidence, as the acts of a sane and rational man, unless the evidence shows not only a possibility that his mental condition was otherwise, but further shows, by a fair preponder- ance of the evidence in the case, that the defendant was then in fact irrational or suffering from mental aberration of the mind. You are not required to find that the defendant was irrational or insane at such time, unless the evidence clearly establishes " State V. Teale, 154 Iowa 677, 135 " Parsons v. People, 218 111. 386, 75 N. W. 408. N. E. 993. § 374 INSTRUCTIONS FORMS. 394 such fact, and should only find him insane or irrational at the time of the fire and subsequent thereto, upon evidence of a re- liable character, which convinces you that such fact is proven by a fair preponderance of all the evidence in the case bearing thereon/^ (2) The court instructs the jury that, although they may be- lieve from the evidence that the defendant at the time of the killing of E. W. was without sufficient power to govern his ac- tion by reason of some impulse which he could not resist or con- trol, yet if they further believe from the evidence that such lack of reason to know right from wrong, or such insufficient will power to govern his actions or to control his impulses, arose alone from voluntary drunkenness, but not from unsoundness of mind, they should not acquit the defendant on the grounds of insanity.^* (3) The court instructs the jury that the law presumes every man sane until the contrary is shown by the evidence, and before the defendant can be excused on the grounds of insanity the jury must believe from the evidence that the defendant at the time of the killing was without sufficient reason to know what he was doing, or that, as the result of mental unsoundness, he had not then sufficient will power to govern his action by reason of some insane impulse which he could not resist or control.^'' (4) The court instructs the jury that if you believe from all the evidence and circumstances in the case that defendant was in the possession of a rational intellect or sound mind, and from real or fancied injury he allowed his passion to escape control, then, though passion or revenge may for a time have driven rea- son from its seat and usurped it, and urged, the defendant with a ^» State V. Novak, 109 Iowa 717, 79 218, S3 Atl. 774; Abbott v. Common- N. W. 465. For similar instructions, wealth, 107 Ky. 624, 21 Ky. L. 1372, see State v. Duestrow, 137 Mo. 44, 55 S. W. 196; Wright v. Common- 38 S. W. 554; Commonwealth v. Kil- wealth, 24 Ky. L. 1838, 72 S. W. 340. Patrick, 204 Pa. ,218, 53 Atl. 774. '= Mathley v. Commonwealth, 120 " Mathley v. Commonwealth, 120 Ky. 389, 86 S. W. 988. See also State Ky. 389, 86 S. W. 988. For similar v. Novak, 109 Iowa 717, 79 N. W. 465 ; instructions, see State v. Novak, 109 State v. Duestrow, 137 Mo. 44, 38 S. Iowa 717, 79 N. W. 465; State v. W. 554; Commonwealth v. Kilpatrick, Duestrow, 137 Mo. 44, 38 S. W. 554; 204 Pa. 218, 53 Atl. 774. Commonwealth v. Kilpatrick, 204 Pa. 395 CRIMINAL LAW. § 375 force at the moment Irresistible to do the deed, If he did do it, he can not then escape legal responsibility for such acts." (5) The court instructs the jury that any condition or cir- cumstance which is capable of creating and does create sudden passion such as anger, rage, sudden resentment, or terror, ren- dering the mind incapable of cool reflection, is in law adequate cause. And where there are several causes to arouse passion, and no one of them alone would constitute adequate cause, it is for you to determine whether or not all such causes combined might be sufficient to do so.^^ §375. Accomplices and accessories. — (1) The court in- structs the jury that all persons are principals who are guilty of acting together in the commission of an offense. When an of- fense is actually committed by one or more persons, but others are present, and, knowing the unlawful Intent, aid by acts or en- courage by words or gestures those actually engaged in the com- mission of the unlawful act, such persons so aiding or encour- aging are principal offenders, and may be prosecuted as such.^' (2) The court instructs the jury that an accessory before the fact under the law is deemed and considered as principal, and is to be punished accordingly.^' (3) The court instructs the jury, as a matter of law, that if two or more persons are engaged in the prosecution of a felony, the acts of each In the prosecution of such felony are binding upon all, and all are equally responsible for the acts of each in the prosecution of such felony.^" (4) The court instructs the jury that it is competent to con- vict upon the uncorroborated evidence of an accomplice. If the jury, weighing the probability of his testimony, think him worthy of belief.^^ (5) The court instructs the jury that the testimony of an ac- complice is competent evidence, and the credibility of such ac- '" State V. Brandenberger, 151 Iowa "Brennan v. People, 15 HI. 511. 197, 130 N. W. 1065. "The instruction was held to "state "Williams v. State (Tex. Cr.), 148 a fundamental principle often an- S. W. 76i. nounced." People v. Anderson, 239 ''Dowling V. State, 63 Tex. Cr. 366, 111. 168, 87 N. E. 917. 140 S. W. 224. "■ Earll v. People, 7i 111. 329. § 375 INSTRUCTIONS FORMS. 396 complice is for the jury to pass upon as they do upon any other witness ; and, while the testimony of an accomplice will sustain a verdict when uncorroborated, yet the testimony of an accomplice must be received with great caution ; but if the testimony carries conviction, and the jury are convinced of its truth, they should give to it the same effect as would be allowed to a witness who is in no respect implicated in the offense.^^ (6) The court instructs the jury that the witness A. S. and G. T. are what is known in law as accomplices, and that, while it is a rule of law that a person accused of crime may be con^ victed upon the uncorroborated testimony of an accomplice, still a jury should always act upon such testimony with great care and caution, and subject it to careful examination, in the light of all other evidence in the case; and the jury ought not to con- vict upon such testimony alone, unless, after a careful examina- tion of such testimony, they are satisfied beyond a reasonable doubt of its truth, and that they can safely rely upon it/^ (7) The court instructs the jury that the witness F. M. is' an accomplice. Now, you can not convict the defendant upon his testimony alone unless you first believe his testimony is true, and that it connects the defendant with the offense charged, and even then you can not convict the defendant upon said testi- mony unless you further believe there is other testimony in the case corroborative of the accomplice's testimony tending to con- nect the defendant with the ofifense charged ; and the corrobora- tion is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its com- mission, and then from all the evidence you must beheve, be- yond a reasonable doubt, that the defendant is guilty.^* (8) The court instructs the jury that an accomplice is one who is connected with the crirhe, either before, at the time, or after the commission of the offense. You are instructed that the ^'^ Shiver v. State, 41 Fla. 630, 27 ''Hoyt v. People, 140 HI. 588, 30 So. 36. For . other similar instruc- N. E. 315, 16 L. R. A. 239. tions, see Bacon v. State, 22 Fla. 51; '* Gates v. State (Tex. Cr.), 149 S. Melton V. State, 116 Ga. 582, 42 S. E. W. 1194. 708; Yontz V. Commonwealth, 23 Ky. L. 1868, 66 S. W. 383. 397 CRIMINAL LAW. § 376 witness B. J. is an accomplice. Now, if you beli€ve from the evidence that the witness B. M. was connected with the crime, if any, either before, at the time, or after the commission of the offense, if any, then you are instructed that he is an accomplice. You are further , instructed that one accomplice can not cor- roborate another accomplice. Now, if you believe from the evi- dence that the said witness, B. M., is an accomplice, as that term is above defined, then you are instructed that there is no testimony corroborating his testimony, or the testimony of the witness B. J., and, if you so find, you are instructed to return a verdict of "not guilty."" § 376. Presumption of innocence. — (1) The court instructs the jury, as a matter of law, that the rule which clothes every person accused of crime with the presumption of innocence and imposes upon the state the burden of establishing his guilt beyond a reasonable doubt is not intended to aid any one who is, in fact, guilty of crime to escape but is a humane provision of the law, intended, so far as human agencies can, to guard against the danger of any innocent person being unjustly punished.^" (2) The court instructs the jury that the burden of proof is upon the people in this case to show the guilt of the defendant, and all the presumptions of law, independent of the evidence, are in favor of his innocence. The law presumes every defend- ant who has been indicted and charged with crime, to be inno- cent until he has been proven guilty, beyond all reasonable doubt. And in this case, the court instructs you that if, after you have considered all the evidence in the case, you then have a reason- able doubt as to the guilt of the defendant, then the defendant is entitled to the benefit of that doubt, and you should acquit him." (3) The court instructs the jury that the defendant at the out- set of the trial is presumed to be an innocent man. He is not re- quired to prove himself innocent or to put in any evidence at all upon that subject. In considering the testimony in the case, you == Foster v. State (Tex. Cr.), ISO "Parsons v. People, 218 111. 386, 75 S. W. 936. N. E. 993. . " People V. Scarbak, 245 111. 435, 92 N. E. 286. § 377 INSTRUCTIONS FORMS. 398 must look at that testimony and view it in the light of that pre- sumption which the law clothes the defendant with, that he is innocent, and it is a presumption that abides with him through- out the trial of the case until the evidence convinces you to the contrary beyond all reasonable doubt.^^ (4) The court instructs the jury that the rule of law which throws around the defendant the presumption of innocence and requires the state to establish, beyond a reasonable doubt, every material fact averred in the indictment, is not intended to shield those who are actually guilty, from just and merited punish- ment, but is a humane provision of the law which is intended for the protection of the innocent and to guard, so far as human agencies can, against the conviction of those unjustly accused of crime.^® (5) The court instructs the jury that the law presumes the innocence, and not the guilt, of the defendant ; and this presump- tion of, innocence attends the defendant throughout the trial, and at the end entitles the defendant to an acquittal, unless the evi- dence in the case, when taken as a whole, satisfies you of de- fendant's guilt beyond a reasonable doubt, as defined in these instructions.^" § 377. Presumptions from flight or attempts to escape. — (i) The court instructs the jury that the flight of a person im- mediately after the commission of a crime, if you find from the evidence that the plaintiff fled, or after a crime has been com- mitted with which he is charged, is a circumstance in establishing his guilt, not sufficient in itself to establish guilt, but a cir- cumstance which the jury may consider in determining the prob- abilities for or against him — the probabilities of his guilt or in- nocence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts , called out in the case.^^ ^ People V. Arlington, 131 Cal. 231, " State v. Stentz, 33 Wash. 444, 74 63 Pac. 347. Pac. 588. Flight or surrender, see =" Anderson v. State, 104 Ind. 467, White v. State, 111 Ala. 92, 21 So. 4 N. E. 63. 330; State v. Williams, 118 Iowa 494, "> State V. Darrah, 152 Mo. 522, 54 92 N. W. 652. S. W. 226. 399 CRIMINAL LAW. § 379 (2) The court instructs the jury that evidence has been in- troduced as to an attempted escape from jail by the deferxiant while in the custody of the sheriff of this county on this charge. If you find from the evidence that defendant did thus attempt to escape from custody, this is a circumstance to be con- sidered by you in connection with all the other evidence to aid you in determining the question of his guilt or innocence.^^ (3) The court instructs the jury that flight raises the presump- tion of guilt; and if the jury believe and find from the evidence that the defendant, after the alleged shooting of W. S., charged in the information, fled from the state of H. for the purpose of avoiding arrest and trial for said offense, you may take this fact into consideration in determining his guilt or innocence.^^ §378. Presumption from surrender of defendant to au- thorities. — The court instructs the jury that the flight of a defendant, in a criminal case, may or may not be considered as a circumstance tending to prove guilt, depending on the mo- tive which prompted it — whether a consciousness of guilt and a pending apprehension of being brought to justice caused the flight, or whether it was caused from some other and more in- nocent motive — and the jury may look to the fact that he went to police headquarters and gave himself up.** §379. Burden of proof. — (1) The court instructs the jury that in a criminal case, the burden of proof never shifts to the defendant, and in this case the burden of proof remains upon the state throughout the case to prove an unlawful killing, and '"There was evidence in this case tion given in relation to it as above." tending to prove that the defendant, Anderson v. State, 104 Ind. 467, 4 N. after being committed to jail to await E. 63. trial, made a vigorous and nearly sue- ^ State v. Schmulbach, 243 Mo. 583, cessful effort to escape. "That ef- 147 S. W. 966. fort to escape," says the reviewing =* White v. State, 111 Ala. 92, 21 court, "'constituted a circumstance So. 330. Flight or surrender, see which the jury were authorized to State v. Williams, 118 Iowa 494, 92 consider in connection with the other N. W. 652 ; State v. Stentz, Zi Wash, evidence in the cause, and, in that 444, 74 Pac. 588. view, we see no error in the instruc- § 3^0 INSTRUCTIONS FORMS. 4OO the burden does not, under any circumstances, shift to the de- fendant to prove his innocence/ ° (2) The court instructs the jury that it is a rule of law that the burden of proving the defendant guilty is upon the prosecu- tion, and if the jury are unsatisfied, from the nature and char- acter of the evidence, or from a want of evidence, as to whether the deceased came to his death at the hands of the defendant or from other causes, or from other hands, they will find the de- fendant not guilty.^^ (3) The court instructs the jury that in this case the burden ■of proof rests upon the prosecution to make out and prove to the satisfaction of the jury, beyond every reasonable doubt, every material allegation in the indictment, and, unless that has been ■done, the jury should find the defendant not guilty.^'' §380. Reasonable doubt. — (1) The court instructs the jury that if there is, from the evidence, a reasonable probability of defendant's innocence, the jury should acquit the defendant.'* (2) The court instructs the jury that in weighing the evi- dence, each piece and all the evidence should be weighed with all the other evidence; and you should make up your verdict from due consideration of the whole of the evidence. If the jury, after considering all the evidence, have a reasonable doubt of de- fendant's guilt, arising out of any part of the evidence, they should find him not guilty. But this does not mean that you have got to find every single item of testimony to be true before you can convict. If, after weighing all the evidence, you have a rea- sonable doubt as to any of the elements which constitute any of- fense charged in this indictment, then you are bound to acquit. It does not mean that you have got to believe every word of the tfestimony in order to convict.'" (3) The court instructs the jury that the rule requiring the '= Carver V.' State (Tex. Cr.), 148 S. "Bondurant v. State, 12S Ala. 31, W. 746. 27 So. 775. See also People v. Hu- ™ South V. People, 98 111. 261. bert, 119 Cal. 216, 51 Pac. 329, 63 Am. ''State V. N-Qvak, 109 Iowa 717, 79 St. 72; Sweet v. State, 75 Nebr. 263, N. W. 465. 106 N. W. 31. =' Huguley V. State, 4 Ala. App. 29, 58 So. 814. 40I CRIMINAL LAW. § 380 jury to be satisfied of the guilt of the defendant from the evi- dence, beyond a reasonable doubt, in order to warrant a convic- tion, is complied with, if, taking the testimony altogether, the jury are satisfied, beyond a reasonable doubt, that the defendant is guilty. The reasonable doubt that the jury is permitted to en- tertain must be as to the guilt of the accused on the whole evi- dence, and not as to any particular fact in the case not material to the issue in the case.*" (4) The court instructs the jury that the reasonable doubt the jury are permitted to entertain must be as to the guilt of the accused on the whole of the evidence, and not as to any partic- ular fact in the case.*^ (5) The court instructs the jury that the rule requiring the jury to be satisfied of a defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the de- fendant's guilt ; it is sufficient if, taking the testimony altogether, the jury are satisfied beyond a reasonable doubt that the defend- ant is guilty. ^^ (6) The court instructs the jury that a reasonable doubt must not be based upon a mere possibility that the defendant may be innocent, for the court instructs the jury that it may be possible that the defendant is innocent and yet at the same time there may be no reasonable doubt but that he is guilty.^^ (7) The court instructs the jury that before there can be a conviction in this case, it is incumbent upon the state to prove all the material allegations of the indictment, or of one of the counts thereof, to the satisfaction of the jury beyond a rea- sonable doubt. The reasonable doubt considered in a criminal case and which is sufficient to entitle the defendant to an ac- quittal is a doubt arising from all the evidence in the case or from a want of evidence. Evidence is sufficient to remove a rea- sonable doubt when it is sufficient to convince the judgments of "People V. Scarbak, 245 111. 435, 92 ^"Bressler v. People, 117 111. 422, 8 N. E. 286. N. E. 62. "Carlton v. People, 150 111. 181, 37 "People v. Lucas, 244 111. 603, 91 N. E. 244, 41 Am. St. 346. N. E. 659. 26 — Branson's Inst. § 380 INSTRUCTIONS FORMS. 402 ordinarily prudent men of the truth of a proposition with such force that they would act upon that conviction without hesita- tion, in their own most important affairs, when they were not compelled to act.** (8) The court instructs the jury that no man can be convicted of crime in this jurisdiction until his guilt is established beyond a reasonable doubt. A "reasonable doubt" is what the word implies; a doubt founded in reason; a doubt for which you can give a reason ; a doubt growing out of the testimony in the case, or the lack of testimony; a doubt which would cause you to hesi- tate in the ordinary affairs of life. It is not a flimsy, fanciful, fictitious doubt which you could raise about anything and eveiy- thing. It means a reasonable doubt. If, when all is said and done, you have such a doubt about the guilt of the accused, it is your duty to acquit him.*° (9) The court instructs the jury that the law presumes the de- fendants' innocence until the state has proven their guilt be- yond a reasonable doubt, and, unless the state has so proven their guilt, you will acquit them. But such a doubt, to authorize an ac- quittal on that ground alone, should be a substantial doubt of guilt, and not a mere possibility of their innocence.*" (10) The court instructs the jury that before they can convict the defendant, they must be satisfied of his guilt beyond a rea- sonable doubt. Such doubt, to authorize an acquittal upon rea- sonable doubt alone, must be a substantial doubt of the defend- ant's guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant's innocence." (11) The court instructs the jury that the question is whether the defendant has produced evidence of a character which raises a reasonable doubt of his guilt — a reasonable doubt whether he was not justified in the defense of his life and limb when he took the life of D." (12) The court instructs the jury that "a reasonable doubt," ■'•' Weigand v. State, 178 Ind. 623, -' State v. Darrah, 152 Mo. 522, 54 99 N. E. 999. S. W. 226. « People V. Davis, 171 Mich. 241, -' State v. Jones, 71 N. J. L. 543, 60 137 N. W. 61. Atl. 396. '"State V. Hale, 156 Mo. 102, 56 S. W. 881. 403 CRIMINAL LAW. § 38 1 as used in these instructions, is such a doubt, in the mind of a reasonable man, as causes him to stop and hesitate and say, "I am not satisfied," when acting with reference to the graver and more important affairs of Hfe. It is not a mere possibility of the innocence of the defendants ; but if the jury, from a careful consideration of all the evidence and facts and circumstances in proof in the case, can say that they have an abiding convic- tion of the truth of the charge made in the indictment, then they are satisfied beyond a reasonable doubt and should find the de- fendants guilty/* (13) The court instructs the jury that in such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant. They must exclude to a moral certainty every other reasonable hypothesis.^" (14) The court instructs the jury that, in order to warrant a conviction on circumstantial evidence, each fact necessary for the conclusion sought to be established must be proved by com- petent evidence beyond a reasonable doubt. All the facts, that is, the necessary facts to the conclusion, must be consistent with each other and with the main fact sought to be proved, and the circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged.''^ (15) The court instructs the jury that, to warrant a convic- tion, each fact necessary to establish the guilt of the accused must be proved by competent evidence beyond a reasonable doubt and the facts and circumstances proved should not only be con- sistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of guilt, to produce in your minds a reasonable and moral certainty that the accused committed the offense.^'' §381. Circumstantial evidence. — (1) The court instructs the jury that, in order to warrant a conviction for crime on cir- " Gatlifif V. Territory, 2 Okla. 523, " Henderson v. State, SO Tex. Crim. 37 Pac. 809. 266, 96 S. W. 37. "Dowling V. State, 63 Tex. Cr. 366, '" Chitister v. State, 36 Tex. Cr. 635, UO S. W. 224. 28 S. W. 683. § 381 INSTRUCTIONS FORMS. 4O4 cumstantial evidence, the circumstances, taken together, should be of a conclusive nature and tendency, leading, on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no one else, committed the offense charged ; and it is the invariable rule of law that, to warrant a conviction upon circumstantial evidence alone, such facts and circumstances must be shown as are consistent with the guilt of the party charged, and as can not, upon any rea- sonable theory, be true, and the party charged be innocent; and in this case, if all the facts and circumstances relied upon by the people to secure a conviction can be reasonably accounted for upon any theory consistent with the innocence of the de- fendant, then the jury should acquit the defendant.^* (2) The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the defendants de- liberately and intentionally shot J. M. in manner and form as charged, and as he was passing along the public highway, and that from the effects of such shooting the said J. M. died as charged in the indictment, it matters not that such evidence is circumstantial, or made up from facts and circumstances, pro- vided the jury believe such facts and circumstances pointing to his guilt to have been proved beyond a reasonable doubt by the evidence.'** (3) The court instructs the jury, as a matter of law, that, where a conviction for a criminal offense is sought upon circum- stantial evidence alone, the people must not only show, by a pre- ponderance of the evidence and beyond a reasonable doubt, that the alleged facts and circumstances are true, but they must be such facts. and circumstances as are absolutely incompatible upon any reasonable hypothesis other than that of the guilt of the ac- cused.''^ (4) The court instructs the jury as a matter of law that, where a conviction for a criminal offense is sought upon the circumstan- tial evidence alone, the state must not only show by a preponder- "' Marzen v. People, 173 111. 43, SO " Everett v. People, 216 111. 478, 75 N. E. 249. N. E. 188. "Schoolcraft v. People, 117 III. 271, 7 N. E. 649. 405 CRIMINAL LAW. § 38 1 ance of the evidence that the alleged facts and circumstances are true, but they must be such facts and circumstances as are abso- lutely incompatible, upon any reasonable hypothesis, with the in- nocence of the accused, and incapable of explanation upon any reasonable hypothesis, other than that of the guilt of the accused. And in this class of cases the jury must be satisfied, beyond a reasonable doubt, that the crime has been committed by some one in manner "and form as charged in the indictment, and then they must not only be satisfied that all the circumstances proved are consistent with the defendant having committed the act, but they must also be satisfied that the facts are such as to be incon- sistent with any other rational conclusion than that the defend- ant is the guilty person. It is your first duty to determine from the evidence what facts and circumstances are thereby estab- lished, and then to draw from such facts and circumstances, after carefully examining and weighing them, your conclusion as to the guilt or innocence of the defendant. It is your duty to exercise great care and caution in drawing conclusions from proved facts. They should be fair, and natural, and not forced and artificial conclusions, and all the facts and circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no one else, committed the offense charged. It is not sufficient that they create a probability, though a strong one, and if, there- fore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential therefore that the circumstances, taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis. If then all the facts and circumstances established by the evidence beyond a reasonable doubt can not be reconciled with any rea- sonable hypothesis of the defendant's innocence, but do concur in showing the defendant's guilt, and, when taken together, are sufficient to prove beyond reasonable doubt the guilt of the crime charged in the indictment, or any other crime included therein, § 382 INSTRUCTIONS FORMS. 406 then you are instructed that it is your duty to convict the de- fendant of the crime so established/" (5) The court instructs the jury that, to warrant a conviction of the defendant on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt; all the facts (that is, necessary facts to the conclusion) must be consistent with each other, and with the main fact sought to be proved, and the circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused, and no other person, committed the ofifense charged against him." §382. Good character of accused. — (1) The court in- structs the jury in regard to the evidence given of the defend- ant's character for peace and quietude, this is always admissible in behalf of a defendant accused of crime, and is not to be ig- nored; but such good character, if proven, is not, of itself and alone, a defense or justification or excuse for committing' a crime, but should be considered by the jury along with the other evidence in the case in determining whether or not the defend- ant is, in fact, guilty as charged.^^ (2) The court instructs the jury that the defendant has intro- duced evidence before you tending to show his good character for peace and quietness. If, in the present case, the good char- acter of the defendant for these qualities is proven to your sat- isfaction, then such fact is to be kept in view by you in all your deliberations, and it is to be considered by you in connection with the other facts in the case; and if after a consideration of all the evidence in the case, including that bearing upon the good character of the defendant, the jury entertain a reasonable doubt as to defendant's guilt, then I charge you it is your duty to ac- quit him. But if the evidence convinces you, beyond a reasonable doubt, of defendant's guilt, you must so find, notwithstanding his good character.^* ™ State V. Novak, 109 Iowa 717, 79 " Rhea v. State, 104 Ark. 162, 147 N. W. 465. S. W. 463. "Harris v. State (Tex. Cr.), 148 "People v. Mitchell, 129 Cal. 584, S. W. 1074. 62 Pac. 187. For similar instructions, 407 CRIMINAL LAW. § 382 (3) The court instructs the jury that, as a matter of law, the defendant has put in evidence his general reputation for honesty and integrity; that such evidence is permissible under the law, and is to be by the jury considered as a circumstance in this case. But the court further instructs the jury that if, from all the evi- dence in this case, they are satisfied, beyond a reasonable doubt, of the guilt of the accused, then it is the duty of the jury to find him guilty, notwithstanding the fact, if such be the fact, that heretofore the accused has borne a very good character for hon- esty."" . (4) The court instructs the jury that evidence of good char- acter is, in law, to be considered by the jury, in all doubtful cases, of great weight. Yet, if the proof of guilt is direct and clear, it is entitled to little consideration."^ (5) The court instructs the jury that the defendant has in- troduced testimony tending to show his previous good character as to the trait involved in the offense charged in the indict- ment. It is competent for a person, accused of a crime, to prove, as a circumstance in his defense, that his previous character, as to the trait involved in the offense charged, was good. Previous good character is not, of itself, a defense, but it is a circum- stance to be considered by the jury in connection with all the other evidence in determining the guilt or innocence of the ac- cused. It is a circumstance which may be shown for the purpose of rebutting the presumption of guilt arising from circumstan- tial evidence. It may be considered as tending to show that a man of such character would not be likely to commit the crime charged. It should be given consideration irrespective of whether other evidence is conclusive or inconclusive, and it is for the jury to determine, under all the facts and circumstances in the case, what weight should be given to such evidence."^ (6) The court instructs the jury that in determining as to the guilt or innocence of the defendant, you should take into ac- see Keys v. State, 112 Ga. 392, 2,1 S. «" Young v. People, 193 111. 236, 61 E. 762, 81 Am. St. 63; People v. Dip- N. E. 1104. pold, 30 App. Div. 62, 51 N. Y. S. 859, " Creed v. People, 81 111. 565. 13 N. Y. Cr. 230. ""State v. O'Callaghan (Iowa), 138 N. W. 402 § 3^2 INSTRUCTIONS FORMS. 408 count the testimony in relation to his character for honesty, in- tegrity, and veracity, and you should give to such testimony such weight as you deem proper; but if, from all the evidence before you, you are satisfied beyond a reasonable doubt, as de- fined in these instructions, that the defendant is guilty, then his previous good character, if shown, can not justify, excuse, pal- liate, or mitigate the offense, and you can not acquit him merely because you may believe he has been a person of good repute."' (7) The court instructs the jury that where it is shown to your satisfaction that the defendant was of good general reputation for peace and good order in the community, that kind of testi- mony, if properly made out to you, is positive and substantial evidence, and it should be weighed by you in consideration of this case. The courts of highest resort in this state have said it is evidence which may work a doubt for the acquittal of the de- fendant. If that evidence is properly made out to you, it should be sufficient in that line. It is not, however, to weigh against positive facts which should convince your mind that this defend- ant did the deed which he is charged with committing here. Where the facts and circumstances are such as to leave no room for doubt, and the minds of the jury are thoroughly and fully convinced, this evidence itself would not then work the acquittal of the defendant, but it is to come in the consideration of the case, the same as any other evidence, as positive and substantive evidence, and to be weighed by you in that line.** (8) The court instructs the jury that evidence of good char- acter is not a mere make-weight, thrown in to assist in the pro- duction of a result that would happen at all events, but is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal.*^ (9) The court instructs the jui-y upon the question of the " State V. Darrah, 1S2 Mo. 522, 54 State, 112 Ga. 392, 37 S. E. 762, 81 S. W. 226. This instruction has been Am. St. 63 ; People v. Mitchell, 129 frequently approved. State v. Jones, Cal. 584, 62 Pac. 187; People v. Dip- 78 Mo. 278; State v. Kilgore, 70 Mo. pold, 30 App. Div. 62, 51 N. Y. S. 546; State v. McMurphy, 52 Mo. 251. 859, 13 N. Y. Cr. 230. "Commonwealth v. Harmon, 199 '"Commonwealth v. Harmon, 199 Pa. 521, 49 Atl. 217, 85 Am. St. 800. Pa. 521, 49 Atl. 217, 85 Am. St. 800. For similar instructions, see Keys v. 409 CRIMINAL LAW. § 383 good character of the defendant foi- being a peaceable and law- abiding citizen, that this evidence should be considered by the jury as tending to establish a defense. If, however, the jury should be satisfied of the guilt of the defendant beyond a reason- able doubt, after a full consideration of all the evidence in the case, including the evidence in regard to the character of the defendant for being a peaceable and law-abiding citizen, then, though the jury might believe the defendant had a good charac- ter for being a peaceable, law-abiding citizen before the charge for which he is now being tried, such evidence of good char- acter would not avail the defendant as a defense and entitle him to an acquittal.^^ §383. Testimony of defendant in his own behalf. — (1) The court instructs the jury that the defendant is a competent witness in her own behalf, and you have no right to discredit her testimony from caprice, nor merely because she is the defendant. You are to treat her the same as any other witness, and subject her to the same tests, and only the same tests, as are legally ap- plied to other witnesses; and while you have the right to take into consideration the interest she may have in the result of this trial, you have also the right, and it is your duty, to take into consideration the fact, if such is the fact, that she has been cor- roborated by other credible evidence.^^ (2) The court instructs the jury that, although a defendant has a right to be sworn and to give testimony in his own behalf, the jury are not bound to believe his testimony, but they are bound to give it such weight as they believe it is entitled to; and his credibility, and the weight to be attached to his testi- mony, are matters exclusively for the jury, and the defendant's interest in the result of the trial is a matter proper to be taken into consideration by the jury in determining what weight ought to be given to his testimony.** (3) The court instructs the jury, as a matter of law, that in this state [Illinois] one accused and on trial charged with the ""State V. Stentz, 33 Wash. 444, 74 "'Bressler v. People, 117 111. 422, 8 Pac. 588. N. E. 62. "McElroy v. People, 202 111. 473, 66 N. E. 1058. § 383 INSTRUCTIONS FORMS. 4IO commission of a crime may testify in his own behalf, or not, as he pleases. You are instructed that when a defendant does tes- tify in his own behalf, then you have no right to disregard his tes- timony merely because he is accused of crime ; that when he does so testify he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness ; and in determining the degree of credibility that shall be accorded to his testimony the jury have a right to take into consideration the fact that he is interested in the result of the prosecution, as well as his de- meanor and conduct upon the witness stand; and the jury may also take into consideration the fact, if such is the fact, that he has been corroborated or contradicted by credible evidence or by facts or circumstances in evidence. And the court further in- structs the jury that if, after considering all the evidence in this case, they find that any witness testifying on behalf of either side has wilfully and corruptly testified falsely to any fact material to the issue in this case, then they have the right to disregard the testimony of such witness, except in so far as corroborated by ■other credible evidence or facts and circumstances in evidence. The question of the weight and credit to be given to each and every witness, on either side, is entirely for the jury."' (4) The court instructs the jury that they have no right to disregard the testimony of the defendants, or either of them, through mere caprice, or merely because they are defendants. The law makes them competent witnesses and the jury are bound to consider their evidence, and are the sole judges of their cred- ibility. Yet the jury are under no legal obligation to believe them if, from all the facts proved in the case, they think their testimony not reliable.'" " People V. Scarbak, 245 III. 435, 92 82 N. E. 391 ; Spears v. People, 220 111. TSr. E. 286. The instruction has been 72, 77 N. E. 112, 4 L. R. A. (N. S.) often approved. Hirschman v. People, 402; People v. Zajicek, 233 111. 198, 101 111. 568; Rider v. People, 110 111. 84 N. E. 249. 11; Siebert v. People, 143 III. 571, 32 ™The instruction as requested did N. E. 431 ; Williams v. People, 196 not contain the last sentence of the 111. 173, 63 N. E. 681 ; McCracken v. above form. The sentence was added People, 209 111. 215, 70 N. E. 749; by the trial court. The modification Crocker v. People, 213 111. 287, 72 N. was held to be unobjectionable. E. 743 ; Miller v. People, 229 111. 376, Creed v. People, 81 111. 565. 411 CRIMINAL LAW. §383 (5) The court instructs the juiy that the defendant is a com- petent witness in this case, and you must consider his testimony in arriving at your verdict ; but in determining what weight and credibiHty you will give to his testimony in making up your ver- dict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on trial, testifying in his own behalf.'^ (6) The court instructs the jury that the defendants are com- petent witnesses in their own behalf, and their testimony is to be received by you and weighed by the same rules as the tes- timony of any other witness. In passing upon what weight you will give to their testimony, you may take into consideration the fact that they are the defendants on trial, and their interests in the result of the trial.''^ (7) The court instructs the jury that the interest the defend- ant has in the case may be considered by them in weighing his own testimony.''^* (8) The court instructs the jury that, while I have told you that, in order for your verdict to be a legal and proper one, it must be founded on the evidence in the case, yet, in this connec- tion, I give to you another rule, which may or may not, as you must determine, affect your finding: In all criminal trials the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It is not to be made under oath, and it shall have such force only as the jury may think right to give it. The jury may believe it in preference to the sworn testimony in the case."'' (9) The court instructs the jury that you should take the evidence in this case, in connection with the defendant's state- ment, measuring the statement under the rule of law the court has given you, determine what the truth of the matter is, and then let your verdict be in accordance with what you believe to be the "State V. Darrah, 152 Mo. 522, 54 "a Wright v. State, 148 Ala. 596, 42 S. W. 226. So. 745. "State V. Hale, 156 Mo. 102, 56 S. '^ Rouse v. State, 136 Ga. 356, 71 W. 881. S. E. 667. § 383 INSTRUCTIONS FORMS. 4I2 truth. There is nothing in this case but the law and the evi- dence."" (10) The court instructs the jury that the prisoner's state- ment is made under oath, and it shall have such weight and effect as the jury sees fit to give it. The jury may believe it in pref- erence to the sworn testimony in the case.'^*^ (11) The court instructs the jury that the defendants in this case are competent witnesses in their own behalf, and you have no right to discredit their testimony from caprice or merely be- cause they are the defendants. You are to treat them the same as any other witnesses, and subject them to the same tests, and only the same tests, as are legally applied to other witnesses ; and, while you have the right to take into consideration the interest they may have in the result of this trial, you have also the right, and it is your duty, to take into consideration the fact, if such is the fact, that they have been corroborated by other credible evidence.''^" (12) The court instructs the jury that, there has been evi- dence offered here as to the character of this defendant. It is proper for you to consider that evidence in passing on the credi- bility of the witness and the weight that you will give to his testi- mony; and in passing on the credibility or the weight of any one's testimony you will take into consideration the interest that such witness has in the outcome of the case, any relationship, near or remote, to the parties involved, any interests or bias that such witness may have, the person's opportunity to know and under- stand the things about which he testified. The defendant has testified in his own behalf. The law says that you shall scruti- nize closely his evidence by reason of his interest in the final determination of the case. If, after you do so, you find he is a worthy witness, then you can give his evidence such weight as you would any other creditable witness, or such weight as you see fit.'^f "= Roberts v. State, 9 Ga. App. 807, "e People v. Archibald, 258 111. 383, 72 S. E. 287. 101 N. K 582. "d Douglas V. State (Ga. App.), 79 "f State v. Dixon, 149 N. Car. 460, S. E. 1134. 62 S. E. 615. 413 CRIMINAL LAW, § 384 (13) The court instructs the jury that, in passing upon the evidence of the defendants you should take into consideration the interest they have in the indictment. You should scrutinize their evidence closely. You would not be warranted in refusing to believe what they say because of the fact that they are under indictment, but you should consider their interest in the con- test, and give to what they say such weight as you think, under all the circumstances, it is entitled to.'^^ § 384. Admissions and confessions. — ( 1 ) The court in- structs the jury that, where a confession of the prisoner charged with a crime is offered in evidence, the whole of the confession so offered and testified to must be taken together, as well that part which makes against him; and if the part of the statement which is in favor of the defendant is not disproved by other tes- timony in the case, and is not improbable or untrue, considered in connection with all the other testimony of the case, then that part of the statement is entitled to as much consideration from the jury as the parts which make against the defendant.^^ (2) The court instructs the jury that evidence has been intro- duced to show the defendant made certain admissions appearing in evidence. Verbal statements or admissions should be received by you with great caution, as they are subject to much imper- fection and mistake, owing to the person speaking not having clearly expressed his own meaning, or the person spoken to not having clearly understood the speaker. It frequently happens, also, that the witness, by unintentionally altering a few words or expressions really used, gives an effect to the statement entirely at variance with what the speaker actually did say. But when such verbal statements are precisely given, and identified by in- telligent and reliable witnesses, they are often entitled to great credit." (3) The court instructs the jury that where the verbal ad- mission of a person charged with a crime is offered in evidence, the whole of the admission must be taken together, as well that "s State V. Vann, 162 N. Car. 534, "State v. Jackson (Iowa), 137 N. ^^ s. E. 295. w. 1034. " Burnett v. People, 204 111. 208, 68 N, E. 505, 98 Am. St. 206. 384 INSTRUCTIONS FORMS. 414 part which makes for the accused as that which may make against him, and if the part of the statement in favor of the defendant is not disproved, and is not apparently improbable or untrue, when considered with all the other evidence in the case, then such part of the statement is entitled to as much consideration from the jury as any other part of the statement; but the jury are not obliged to believe or disbelieve all of such statement. They may disregard such parts of it, if any, as are inconsistent with the other testimony, or which the jury believe from the facts and circumstances proved on the trial are untrue.'^' (4) The court instructs the jury that if they believe from the evidence to the exclusion of a reasonable doubt that any state- ment or statements detailed in evidence as ha^•ing been made by defendant amounted to a confession by him of guilt or either or any of the offenses referred to in the foregoing instructions, they are instructed that a confession of the accused, if any there was, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was com- mitted." (5) The court instructs the jury that in making up your ver- dict you have a right to consider any statements, if any, shown to have been made by the defendant, but in considering such statements you must consider the whole statements or conversa- tion together. The defendant is entitled. to the benefit of what he said in his own behalf if you believe it is true, but, if you do not believe it is true, you are not bound to believe and consider it because proven by the state. You should consider such state- ments, however, with caution on account of the liability of the witnesses to forget or misunderstand what was really said or intended. If you believe and find from the evidence that the defendant at the time he made any statement or statements, if any, concerning the crime charged in the information and his connection therewith, was unconscious or delirious and not able to understand or apprehend what he was saying, then such state- '= State V. Novak, 109 Iowa 717, 79 ™WeiidIing v. Commonwealth, 143 N. W. 465. Ky. 587, 137 S. W. 205. 415 CRIMINAL LAW. §385 ment or statements made by the defendant while in such condi- tion you will not consider." (6) The court instructs the jury that if verbal statements of the defendant have been proven in this case you may take them into consideration, with all the other facts and circumstances proven. What the proof may show you, if anything, that the defendant has said against himself, the law presumes to be true, because against himself; but anything you may believe from the evidence that defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the other facts and circumstances in the case.''* (7) The court instructs the jury that an alleged written con- fession purporting to have been made and signed by the defend- ant has been introduced in evidence before you, and as to the same you are instructed that, unless you believe from the evi- dence, beyond a reasonable doubt, that the defendant made the same and that he made it freely and voluntarily and without com- pulsion or persuasion or promises, you will reject the same and not consider it for any purpose whatever.'' § 385. Testimony of witnesses before examining magis- trates. — The court instructs the jury that in this case the peo- ple have offered in evidence the testimony of the defendant, D. P. G., given by him on his examination before the justice of the peace, for the crime for which he is now on trial, and that the whole of the testimony so read must be taken together — as well that part which makes for the accused as that which may make against him — and if any part of such testimony is in favor of the defendant, and is not apparently improbable or untrue, when considered with all the other evidence in the case, then such part of his testimony is entitled to as much consideration from " State V. Dietz, 235 Mo. 332, 138 Mo. 522, 54 S. W. 226. See also S- W. 529. State v. Carlisle, 57 Mo. 102; State " "This instruction," says the Su- v. Brown, 104 Mo. 365, 16 S. W. 406 ; preme Court of Missouri, "has proven State v. Wisdom, 119 Mo. 539, 24 S. to be a good, workable instruction for W. 1047. many years, is not calculated to mis- ™Overstreet v. State (Tex. Cr.), lead a jury and continues to command ISO S. W. 899. our approval." State v. Darrah, 152 § 3^6 INSTRUCTIONS FORMS. 416 the jury as any other part of his testimony. The testimony so ofifered and read for the people must be cqnsidered as the testi- mony of the defendant in the case, so far as it goes.*" § 386. Resisting arrest. — ( 1 ) The court instructs the jury that it is the duty of an officer in making an arrest without a warrant to state to the defendant that he is an officer and his purpose to arrest them, and, if in this case the jury find that the deceased stepped to the side of the road and with a gun drawn called, "Halt!" or "Hold up!" with nothing further, the de- fendant would have a right to resist.*^ (2) The court instructs the jury that a man is not bound to submit to an unlawful arrest. He may stand his ground and re- pel force by force, taking care that the force he employs does not exceed the bounds of mere defense and prevention, and that it does not become erroneously disproportionate to the injury threatened.*^ (3) The court instructs the jury that if an officer, in attempt- ing to make an arrest under a void warrant, makes an assault upon the party sought to be arrested, in such a manner as would indicate to a reasonable person an intention to take life or do great bodily harm, the person assaulted, if he in good faith acts under the influence of an actual fear that he is about to lose his life or receive great bodily harm, may resist with such force or weapons as may be available to him at the time.*' (4) The court instructs the jury that a statute of this state defines an "arrest" to be the taking of a person into custody when and in the manner authorized by law and may be made at any time of any day or night. It is also provided that an arrest may be made by a peace officer or by a private person. It is fur- ther provided that a peace officer may make an arrest in obedi- ence to a warrant delivered to him, and without a warrant for a public offense committed or attempted in his presence or where a public offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has com- " Gott V. People, 187 111. 249, 58 N. " Palmer v. People, 138 111. 356, 28 E. 293. N. E. 130, 32 Am. St. 146. " Jones V. State, 102 Ark. 195, 143 " Palmer v. People, 138 111. 356, 28 S. W. 907. N. E. 130, 32 Am. St. 146. 417 CRIMINAL LAW. §38/ mitted it. The statute further provides that a private person may make an arrest : First for a pubHc offense committed or at- tempted in his presence; and, second, when a felony has been committed and he has reasonable grounds for believing that the person to be arrested has committed it.^* (5) The court instructs the jury that the following persons are defined and designated by the statute as peace officers : First, sheriffs and their deputies; second, constables; and, third, mar- shals and policemen of cities and towns. A statute of this state further provides that a mayor of a city may in cases of emer- gency appoint such number of special policemen as he may think proper, reporting such special appointment to the council at its next regular meeting, all such special appointments to continue in force until such meeting unless sooner terminated by the mayor.^^ § 387. Right to consider demeanor of witnesses. — (1) The ' court instructs the jury that they are the sole judges of the credibility of the witnesses in judging the credibility of the wit- nesses in this case, you should carefully scrutinize the testimony given, and in doing so consider all the circumstances under which any witness has testified ; his demeanor and manner while on the stand ; his interest, if any, in the outcome of the case ; the relations which he bears to the state or to the defendant; the manner in which he might be affected by the verdict, and the ex- tent to which he is contradicted or corroborated by other cred- ible evidence, if at all ; and any circumstances that tend to shed light upon his credibility.*^ (2) The court instructs the jury that they are the sole judges of the facts in this case, and of the credit, if any, to be given to the respective witnesses who have testified; and, in passing on the credibility of such witnesses, the jury have a right to take into consideration, not only their evidence itself, but their conduct, demeanor, or bearing while testifying on the stand; their objects, ''State V. Browning, 153 Iowa 37, ""People v. Goodrich, 251 111. 558, 133 N. W. 330. 96 N. E. 542. "State V. Browning, 153 Iowa 37, 133 N. W. 330. 27— Branson's Inst. § 3^8 INSTRUCTIONS FORMS. 418 purposes, or designs, if any have been shown by the evidence in so testifying; their feelings of prejudice against the defendant in this case, if any have been shown, and their means of knowing the facts and circumstances in proof, if any, tending to expose the feeHngs or purpose of such witness.*^ (3) The court instructs the jury they are the sole -judges of the credibility of the witnesses, and the weight and value to be given to their testimony. In determining as to the credit you will give to a witness, and the weight and value you will attach to a witness' testimony, you should take into consideration the con- duct and appearance of the witness upon the stand; the interest of the witness, if any, in the result of the trial; the motives of the witness in testifying; the witness' relation to, or feeling for or against, the defendant or the alleged injured party; the prob- ability or the improbability of the witness' statements; the op- portunity the witness had to observe and to be informed as to matters respecting which such witness gives testimony; and the inclination of witness to speak truthfully or otherwise as to mat- ters within the knowledge of such witness. All these matters being taken into account, with all the other facts and circum- stances given in evidence, it is your province to give each wit- ness such credit, and the testimony of each witness such value and weight, as you deem proper.^* §388. Duty to reconcile evidence if possible. — (1) Tfie court instructs the jury that they should weigh all the evidence and reconcile it, if possible; but, if there be irreconcilable con- flict in the evidence, they ought to take that evidence which they think worthy of credit, and give it just such weight as they think it entitled to.^'' (2) The court instructs the jury that if the evidence is ir- reconcilable, you must consider that evidence which you deem worthy of credit, and discard that which you do not deem ''Bressler v. People, 117 111. 422, 27 So. 775. See also People v. Hu- 8 N. E. 62. bert, 119 Cal. 216, 51 Pac. 329, 63 Am. '"State V. Darrah, 152 Mo. 522, 54 St. 72; Sweet v. State, 75 Nebr. 263, S. W. 226. 106 N. W. 31. »" Bondurant v. State, 125 Ala. 31, 419 CRIMINAL LAW. § 388 worthy or credit. You must give the evidence just such weight as you think it deserves.^" (3) The court instructs the jury that, you are the sole judges of the credibiUty of the witnesses and the weight to be given to the testimony of each. If the testimony of a witness is apparently candid and fair, reasonable within itself, and he has been in no way impeached, you should not arbitrarily discard his testi- mony. It is your duty to reconcile the testimony if you reason- ably can, so that it may all stand. If you can not reconcile the testimony, then, for the purpose of ascertaining what tes- timony is worthy of credit, you take into consideration the apparent candor and fairness of a witness, the reasonable- ness or unreasonableness of his or her story whether or not the witness has been in any way impeached, the interest of the wit- ness in the case, if any, whether or not the witness had made contradictory statements and all the circumstances surrounding the case.'"* (4) The court instructs the jury that, it is your duty, if there be any conflict in the testimony of witnesses, to reconcile such conflict, if you can do so, without arbitrarily imputing perjury to any one. If you find that you can not reconcile such conflict, your obligation being to go in the direction which you consider to be the truth, then, if in reaching that it becomes necessary to impute perjury to any witness or witnesses, it is your duty to take that responsibility upon yourselves. Therefore take this case in its entirety, consider the facts, apply to it the principles of law which have been given to you in charge, and reach the truth to the best of your ability.''"^ (5) The court instructs the jury that, when an apparent dis- crepancy exists between the testimony of different witnesses, it is the duty of the jury to reconcile the whole together if it can be done, so as not to impute perjury to any one. There are sev- eral methods prescribed by our law by which a witness may be impeached, and one is by disproving the facts testified to by "Bondurant v. State, 125 Ala. 31, "b Hunter v. State, 136 Ga. 103, 70 27 So. 77S. S. E. 643. "a Nelson v. State, 3 Okla. Cr. 468, 106 Pac. 647. 3^9 INSTRUCTIONS FORMS 420 him. Another is by proof of contradictory statements previously made by him as to matters relevant to his testimony and to the case, and still another is by evidence as to his general bad char- acter. The credibility of a witness is a matter to be determined by the jury under proper instructions by the court. When an at- tempt to impeach a witness in any of the methods pointed out has been made, it is for the jury to say whether such attempt has been successful, and, when a witness has been successfully contradicted as to material matter, his credit as to other matters is for the jury.°°° (6) The court instructs the jury that, if there were conflicts between the witnesses, which you can not reconcile, you have the right to believe one witness and disbelieve the other.""'^ § 389. Evidence of work of bloodhounds. — (1) The court instructs the jury that the evidence in the case relating to the work of the dogs should be cautiously weighed with discriminat- ing judgment, and unless they believe from the facts and circum- stances in the case, beyond a reasonable doubt, that the alleged trail at the place where the dogs finally ceased their work was connected with and pointed to the defendant as the person who made it, then all evidence in relation to such work and to the al- leged trail should be rejected and entirely disregarded. And unless the jury believe from the evidence beyond a reasonable doubt that the alleged trail, at the point where the dogs were laid on to it, and the alleged trail, at the point where they finally quit their work, had been made by a human being who was one and the same person, then all evidence in relation thereto should be rejected and ignored by the jury. And unless it clearly appears from the testimony that by the breeding, nature, training, and experience of the dogs, when they are removed for an hour or so from the trail of some person or thing which they had been pursuing, they will not, on resuming work at a distant place, voluntarily pursue the trail or scent of any other person or thing, then their work under such conditions would be of no evidential value; and in this case, if the evidence does not show the dogs possessed of such qualities, and yet did their work in such man- ■"<= Rouse V. State, 136 Ga. 356, 71 "°d Marshall v. State, 54 Fla. 66, 44 S. E. 667. So. 743. 421 CRIMINAL LAW. § 390 ner, then the jury must eliminate from their consideration all evidence relating to the dogs or their work.°^ (2) The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the dogs, by their na- ture, prior training, and experience were capable of tracking or trailing a human being without aid or suggestion in the progress of their work, and that unaided they did so, in the surround- ings disclosed by the evidence in this case, and if they further be- lieve from the evidence that the dogs possessed the power to, and in their work aforesaid did, discriminate between the alleged trail on which they first have been laid, and the trail, track, or scent (if any) of any other person or thing which came within their range during the progress of their work, and did pursue from the beginning to the final close of their work a trail or trails made by one and the same person, and no other, if made by a person, and if the jury believe from the evidence, beyond a reasonable doubt, that the immediate surroundings and conditions existing at the time and place when and where the dogs finally terminated their work, as shown by the testimony, clearly pointed to the de- fendant as the person who had made the trail (if any), then the jury may consider the work of the dogs as a circumstance in the case, provided they further believe from the testimony that the alleged trail in its origin was made at the time the alleged homi- cide was committed by the person who committed it.°^ § 390. Finding of guilt against more than one defendant. — The court instructs the jury that you may find defendants both guilty or both not guilty, or you may find one guilty and the other not guilty, as you shall believe from the evidence the facts to be.'" " State V. Rasco, 239 Mo. 535, 144 " State v. Hale, 156 Mo. 102, 56 S. W. 449. S. W. 881. ""State V. Rasco, 239 Mo. 535, 144 S. W. 449. CHAPTER XL. CRIMINAL LAW PARTICULAR OFt^ENSES AND CRIMES. Section 391. Abandonment of family. 392. Abduction. 393. Abortion. 394. Adultery. 395. Assault and battery. 396. Bigamy. 397. Burglary. 398. Conspiracy. 399. Disturbing religious meetings. 400. Embezzlement. 401. Forgery. 402. Gaming. 403. Homicide. 404. Homicide — Manslaughter. 405. Homicide — Accidental killing. 406. Homicide — Cooling time. 407. Homicide— Malice. 408. Homicide — Defenses — Irresist- ible impulse. 409. Homicide — Defenses — Intoxica- tion. Section 410. Homicide — Defenses — Apprehen- sion of great bodily harm. 411. Homicide — Defenses — Threats. 412. Homicide — Defenses — Self- defense. 413. Homicide — Verdict fixing pun- ishment. 414. Larceny. 415. Larceny — Possession of stolen property by accused. 416. Liquor law violations. 417. Nuisances. 418. Prostitution. 419. Refusal of peace officers to per- form their duties. 420. Rape. 421. Robbery. 422. Seduction. 423. Setting out fires. 424. Theatrical performances without license. 391. Abandonment of family. — (1) The court instructs the jury that primarily it is the duty of the husband to' provide reasonable support for his wife, and that any wilful failure and refusal without good cause so to do constitutes a breach of his duty in that regard, and if he also has abandoned his wife, with- out good cause, then he has committed a desertion as that term is used in the statutes and as set out in the first paragraph of these instructions. The expression "without good cause" does not mean that the husband can abandon his wife or neglect or refuse to provide for her, for some trivial reason; before the law jus- tifies him in so doing, he must have some substantial reason or 422 423 CRIMINAL LAW. § 392 cause which would cause or justify the ordinary person to neg- lect one of his most important duties/ (2) The court instructs the jury that abandonment, under the statutes upon which this prosecution is based, is an actual, wilful desertion, followed by a wilful neglect or refusal to contribute to the support of the wife, and there can be no conviction, even if there is an abandonment as above defined without good cause unless such actual, wilful desertion, followed by a wilful neg- lect and refusal to contribute to such wife's support, is without good cause. The state must prove these several facts beyond a reasonable doubt, and, in addition to this proof, must prove, be- yond a reasonable doubt, that at or about the time alleged the de- fendant was possessed of money, property, or other means avail- able for the maintenance and support of such wife, or had at least the earning capacity and the opportunity to work at the times al- leged and at the times alleged refused, without good cause to maintain and support such wife.^ §392. Abduction. — (1) The court instructs the jury that to constitute the forcible abduction or stealing of a person within the meaning of the statute, it is not necessary that virtual physical force or violence be used upon the person kidnaped. But it will be sufficient, if, to accomplish the removal, the mind of the per- son was operated upon by the defendants, by falsely exciting the fears, by threats, fraud or other unlawful or undue influence, amounting substantially to a coercion of the will, so that, if such means had not been resorted to or employed, it would have re- quired force to effect the removal.^ (2) The court instructs the jury that in determining the guilt or innocence of the defendants in this indictment, the jury should take into consideration the condition of the girl, C. D. — her age, education, and state of mind at the time, the representations and conduct of the several defendants toward her, the effect of those representations and that conduct upon her, the object of the de- * Graham v. State, 90 Nebr. 658, 134 = Graham v. State, 90 Nebr. 658, 134 N. W. 249. N. W. 249. ' Moody V. People, 20 111. 315. § 393 INSTRUCTIONS FORMS. 424 fendants in effecting her removal from the state, and all the cir- cumstances surrounding the case as detailed in the evidence.* (3) The court instructs the jury that the presumption of law is that the life and previous character of the prosecuting witness A. S. were chaste, and the onus is upon the defendant to produce sufficient evidence to overcome such presumption.'' (4) The court instructs the jury that if they believe from the evidence that the defendant, W. S., at the county of M. in this state, at any time within three years before finding of the in- dictment did take away R. W. from her mother, as charged in the indictment for the purpose of concubinage — ^that is, for the purpose of having sexual intercourse with her as man and woman for any length of time, even for a single night, without authority of a legal marriage — and that said R. W. was at the time under the age of eighteen years, and that the mother of said R. W. did not consent to the taking away of said R. W. for said purpose of concubinage, then the jury will find the de- fendant guilty and assess his imprisonment in the penitentiary for a period of not less than two nor more than five years." § 393. Abortion. — (1) The court instructs the jury that if they believe from the evidence that a physician advised that the production of a miscarriage was necessary to save the life of the woman, and that defendant acted in good faith on such advice,, he must be acquitted, though the physician was in fact mistaken as to the necessity.^ (2) The court instructs the jury that if you shall find from the evidence in the case beyond a reasonable doubt that A. H. died from the result of an operation, and that the operation was performed with an intent to produce an abortion on her, and that the operation was performed by the defendant L. H., otherwise called I. V. S., or by any person acting under the defendant's direction, or if the defendant aided, abetted, and encouraged the operation in any manner, and that the operation was not done as * Moody V. People, 20 111. 315. ' State v. Fitzporter, 93 Mo. 390, 6 'Bradshaw v. People, 1S3 111. 1S6, S. W. 223. See also Moore v. Peq- 38 N. E. 652. pie, 31 Colo. 336, 73 Pac. 30. "State V. Stone, 106 Mo. 1, 16 S. W. 890. 425 CRIMINAL LAW. § 395 necessary to preserve the life of said A. H. then in such case the court instructs you as a matter of law, the defendant is guilty of murder in manner and form as charged in the indictment." (3) The court instructs the jury that if you shall believe from the evidence in the case beyond a reasonable doubt that the de- fendant L. H., otherwise called I. V. H., inflicted the injury al- leged in the indictment in the private parts and body of A. H. with an intent to cause A. H. to abort and miscarry, and not as necessary to preserve her life, and that such injury resulted in the death of A. H., then in such case the court instructs you as a matter of law that the defendant is guilty of murder in manner and form as charged in the indictment." § 394. Adultery. — The court instructs the jury that they are to determine from all the circumstances, as brought out by the evidence, whether or not the defendants lived together in a state of adultery, and in order to find the defendants guilty they must find from the evidence that the defendants were living to- gether in an open and notorious state of adultery and that they were cohabiting together; and if the evidence does not establish the living and cohabiting together of the defendants in the minds of the jurors beyond a reasonable doubt, then they must find the defendants not guilty.^" §395. Assault and battery. — (1) The court instructs the jury that if they believe, beyond a reasonable doubt, from the evidence, that the defendant, in anger, laid his hand on S. G., or in any manner took hold of him in anger, then the defendant would be guilty of an assault and battery, and the jury should so find.^^ (2) The court instructs the jury that if you shall find under foregoing instructions that defendant is guilty of some grade of assault, but you have a reasonable doubt as to whether it is as- " People V. Hagenow, 236 111. 514, ' People v. Hagenow, 236 111. 514, 86 86 N.'E. 370 (instruction subject to N. E. 370 (failure to recite preg- criticism that it did not set out that nancy of deceased covered by other deceased was pregnant at the time instructions). of the operation, but this essential " Tomlinson v. People, 102 111. App. was covered by other explicit instruc- 542. tions). "Hunt v. People, 53 111. App. 111. § 39^ INSTRUCTIONS FORMS. 426 sault with intent to murder or aggravated assault and battery, you will convict defendant of no higher offense than aggravated assault and battery. If you find defendant guilty of some grade of assault, but you have a reasonable doubt as to whether it is an aggravated or simple assault, you will convict defendant of no higher offense than a simple assault and battery. If you have a reasonable doubt as to defendant's guilt, you must acquit.^^ §396. Bigamy, — (1) The court instructs the jury that if you believe from the evidence that the defendant had been in- formed that his wife had been divorced, and that he had used due care and made due inquiry to ascertain the truth, and had, considering all the circumstances, reason to believe and did be- lieve, at the time of his second marriage, that his former wife had been divorced from him, they should find him not guilty.^' (2) The court instructs the jury that if you do not believe beyond a reasonable doubt that the defendant married a wo- man known as "C. W." and that she was alive at the time of his marriage to said L. E. then you will find him not guilty.^* § 397. Burglary. — (1) The court instructs the jury that if you believe and find from the evidence, beyond a reasonable doubt, that the defendants, at the county of and state of , at any time within years before the finding of this indictment, which was on the day of , , did forcibly break the outer door of the dwelling house of , and enter said building, and at the time of such breaking and enter- ing there was a human in said building, and that the defend- ants did break and enter said building with the intent to rob the said of any money or property that might be in said build- ing, they will find the defendants guilty as charged in the indict- ment, and assess their punishment at imprisonment in the peni- tentiary for a term of not less than years.^^ " York V. State, 64 Tex. Cr. 153, 142 S. W. 881. Offenses defitiAi, see S. W. 8. State v. Ireland, 72 Kans. 265, 83 Pac. "Squire v. State, 46 Ind. 459. 1036; State v. Miller, 93 Mo. 263, 6 "Hearne v. State, 50 Tex. Cr. 431, S. W. 57; McDow v. State, 113 Ga. 97 S. W. 1050. 699, 39 S. E. 295. "State V. Hale, 156 Mo. 102, 56 427 CRIMINAL LAW. § 398 (2) The court instructs the jury that the indictment in this case, having charged that the burglarious entry was made by force in the daytime, with intent to commit the crime of theft, before you would be warranted in finding the defendant guilty, you must be satisfied from the evidence, beyond a reasonable doubt, that the entry was so made in the daytime by force di- rectly applied to the railroad car and with the intent to commit the specific crime of theft.^" (3) The court instructs the jury that bearing in mind the foregoing definitions of daytime, breaking, entry, and theft, if you believe from the evidence beyond a reasonable doubt that the defendant J. K. at any time within years next before the filing of the indictment herein, in the county of , state of , by force in the daytime, did break and enter a railroad car under the control of N. C. D. as charged in the indictment, with intent to commit theft, you will find him guilty of burglary, and assess his punishment at imprisonment in the penitentiary for not less than two nor more than five years/' (4) The court instructs the jury that the mere fact of the de- fendant having in his possession and disposing of the property alleged to have been stolen; that is, if you are satisfied beyond a reasonable doubt that he had in his possession the property al- leged to have been stolen, and attempted to dispose of it — I say that those facts are only circumstances tending to show guilt, but they are not of themselves sufficient to prove that he committed the burglary. And if the defendant has explained satisfactorily how he came into possession of the alleged stolen property, and from such explanation you believe that he did not participate in the burglary, and there is no other evidence con- necting him with the crime, then you will return a verdict of not guilty.^* §398. Conspiracy. — (1) The court instructs the jury that under the law where a conspiracy is once established, and until "Kelly V. State (Tex. Cr.), 149 "People v. Lang, 142 Cal. 482, 76 S. W. 110. Pac. 232. "Kelly V. State (Tex. Cr.), 149 S. W. 110. § 398 INSTRUCTIONS FORMS. 428 the completion and consummation of the object in view, if the conspiracy lasts that long, evei"y act and declaration of one con- spirator in pursuance of the original concerted plan, done and in reference to any furtherance of the common object even in the absence of the other conspirator, is in contemplation of the law the act and declaration of them all, and is therefore evidence against each, and all are deemed to assent to or command what is said or done by any of them in furtherance of the common object of the conspiracy.^" (2) The court instructs the jury, as a matter of law, that if they believe, from the evidence in this case, beyond a reasonable doubt, that the defendants, or any of them, conspired and agreed together, or with others, to overthrow the law by force, or to unlawfully resist the officers of the law, and if they further be- lieve, from the evidence, beyond a reasonable doubt, that in pur- suance of such conspiracy and in furtherance of the common ob- ject, a bomb was thrown by a member of such conspiracy at the time, and that M. J. D. was killed, then such of the defendants that the jury believe, from the evidence, beyond a reasonable doubt, to have been parties to such conspiracy, are guilty of murder, whether present at the killing or not, and whether the identity of the person throwing the bomb be established or not.^" (3) The court instructs the jury that if these defendants or any two or more of them conspired together, with or not with any other person or persons, to excite the people or classes of the people of this city to sedition, tumult and riot — to use deadly weapons against and take the lives of other persons, as a means to carry their designs and purposes into effect and in pursuance of such conspiracy, and in furtherance of its objects, any of the persons so conspiring, publicly, by print or speech, advised or en- couraged the commission of murder, without designating time, place or occasion at which it should be done, and in pursuance of, and induced by such advice or encouragement, murder was committed, then all of such conspirators are guilty of such mur- der, whether the person who perpetrated such murder can be identified or not. If such murder was committed in pursuance of "State V. Browning, 1S3 Iowa Z7, =" Spies v. People, 122 111. 1, 12 N. 133 N. W. 330. E. 865, 3 Am. St. 320. 429 CRIMINAL LAW. § 399 such advice or encouragement, and was induced thereby, it does not matter what damage, if any, in the order or condition of society, or what, if any, advantage to themselves or others, the conspirators proposed as the result of their conspiracy ; nor does it matter whether such advice and encouragement had been fre- quent and long continued or not, except in determining whether the perpetrator was or was not acting in pursuance of such advice or encouragement, and was or was not induced thereby to com- mit the murder. If there was such conspiracy as in this instruc- tion is recited, such advice or encouragement was given, and murder committed in pursuance of and induced thereby, then all such conspirators are guilty of murder. Nor does it matter, if there was such a conspiracy, how impracticable or impossible of success its ends and aims were, nor how foolish nor ill-arranged were the plans for its execution, except as bearing upon the ques- tion whether there was or was not such conspiracy.^^ (4) The court instructs the jury, as a matter of law, that all who take part in a conspiracy after it is formed and while it is in execution, and all who, with knowledge of the facts, concur in the facts originally formed and aid in executing them, are fel- low-conspirators. Their concurrence, without proof of an agree- ment to concur, is conclusive against them. They commit the offense when they become partners to the transaction or fur- ther the original plan.^^ (5) The court instructs the jury that a "conspiracy" is a combination between two or more persons by concert of action to accomplish some criminal or unlawful purpose, or some law- ful purpose by a criminal or unlawful means. A conspiracy is complete when the conspirators enter into the agreement, and it is immaterial whether the agreement has been carried out or not." § 399. Disturbing religious meetings. — The court instructs the jury that if you shall find from the evidence, beyond a rea- sonable doubt, that on or about the date alleged, in S. county, "^ Spies V. People, 122 III. 1, 12 N. ^ State v. Browning, 153 Iowa i1, E. 865, 3 Am. St. 320. 133 N. W. 330. ''People V. Poindexter, 243 III. 68, 90 N. E. 261. 400 INSTRUCTIONS' FORMS. 43O - — , and, while a congregation was assembled at S. church for the purpose of religious worship, and conducting themselves in a lawful manner, the defendant did wilfully disturb said congre- gation, or any part thereof, by loud and vociferous talking, or by putting out a light while a 'prayer was being said, or by say- ing a mock prayer during said religious services, then you will find defendant guilty and assess a proper penalty therefor.^* §400. Embezzlement. — (1) The court instructs the jury that if they believe from the evidence beyond a reasonable doubt, that the prisoner, W. C. M., was an officer, agent, clerk, or serv- ant of the Insurance Company of America, a corporation, from the day of , , to the day of — =— , , and as such officer, agent, clerk, or servant of said corpora- tion that the money or any portion of the money mentioned in said indictment came into his hands for and in behalf of the said Insurance Company of America, and that the prisoner fraudulently converted the said money or some portion of the same to his own use, then the said prisoner would be guilty of the embezzlement thereof as charged in the indictment.^^ (2) The court instructs the jury that if you believe, beyond a reasonable doubt, that the defendant E. M. D. advised or en- couraged B. R. to procure E. D. to steal or embezzle in manner and form as charged in the indictment, and that E. D. did steal as a result of R.'s so procuring, then in such case you should find defendant E. M. D. guilty.''= (3) The court instructs the jury that this is an information filed by the county solicitor against M. W. E. charging him with the crime of embezzlement of dollars and cents, the money and pi'operty of the Company, a corporation. Now, if you believe from the evidence, and beyond a reasonable doubt, that the defendant, M. W. E., within the county of and state of , being the agent and servant of the Company, a corporation, and by reason of his employment as such agent or servant of said company, received and took into his possession "Webb V. State, 63 Tex. Cr. 207, '"Delahoyde v. People, 212 111. 554, 140 S. W. 95, 72 N. E. 732. " State V. Moyer, 58 W. Va. 146, 52 S. E. 30. 431 CRIMINAL LAW. § 403 the sum of dollars and cents (or any other amount of money) belonging to the said Company, as alleged and set forth in the information, and afterwards, in the month of , , fraudulently converted or appropriated the same to his own use, without the consent of the said Company, you will find the defendant guilty as charged. If you have a reasonable doubt as to his having been proven guilty, you will find him not guilty." §401. Forgery. — (1) The court instructs the jury that if you are satisfied beyond a reasonable doubt that the paper (in this case the note) was a forgery, and that defendant had it in his possession, and tried to obtain money from C. or S. or the bank upon it, then this raises a presumption of guilt, and, unless he has rebutted it, you will return a verdict of guilty.^^ (2) The court instructs the jury that where one is found in the possession of a forged instrument, and is endeavoring to ob- tain money or advances upon it, this raises a presumption that defendant either forged or consented to the forging such in- strument, and nothing else appearing, the person would be pre- sumed to be guilty.'" § 402. Gaming. — The court instructs the jury that wager- ing contracts are betting contracts, and if this in the present case was one where there was no actual purchase or sale intended, it is simply a bet on the rise or fall of cotton. A wagering con- tract in this case would be one, of course, such as I have just de- scribed, where it was simply betting on the rise or fall of the market and not a legitimate transaction under the law and under the rules of the New York Cotton Exchange.^" §403. Homicide.— (1) The court instructs the jury that if they find from the evidence in this case, beyond all reasonable doubt, that the defendant, in county, , and before the finding of this indictment, purposely killed , alias , "by shooting him with a pistol, with a wickedness or depravity of "Eatman v. State (Fla.), i1 So. "" State v. Peterson, 129 N. Car. SS6, 576. 40 S. E. 9, 85 Am. St. 756. "^ State V. Peterson, 129 N. Car. 556, =° Haven v. James, 206 Fed. 683. 40 S. E. 9, 85 Am. St. 756. 8 403 INSTRUCTIONS FORMS. 432 heart toward the deceased, and the killing was determined on beforehand, and after reflection (for however short a time be- fore the fatal shooting was done is immaterial), then the de- fendant is guilty of murder in the first degree.^^ (2) The court instructs the jury that no previous difficulties, offensive language, quarrels, or unpleasant domestic relations between the parties can be considered as furnishing that extreme degree of provocation which the law regards as necessary to arouse an irresistible passion and reduce the killing to man- slaughter. Evidence as to the previous language and conduct of the deceased can only be considered by you in connection with her actions at the time of the killing, in order to enable you to de- termine which of the parties was the aggressor, if all the other evidence in the case leaves you in doubt on that question. Nor is such evidence received and to be considered in mitigation of a crime. If you are satisfied by the evidence, beyond a reasonable doubt, that the defendant killed M. N., and that such killing was wilful (that is, that the act of killing was intentional — that is, not justifiable or excusable as being done in necessary self-de- fense), that it was felonious (that is, done with an intent to commit an act which is made a felony by law), that it was done with malice as hereinbefore defined, and that it was done after premeditation and deliberation (that is, thinking about it before- hand for any period of time, however short, and resolving to take the life of the deceased), then defendant was guilty of murder in the first degree, and the previous unpleasant relations of the parties can not be considered in justification or mitiga- tion of the offense.^^ (3) The court instructs the jury that you can not find the defendant guilty of murder in the first degree unless you find from the evidence that, at the time the fatal shots were fired, there was a specific intent existing in the mind of the defend- ant to take the life of the deceased, and that the shots were fired by him with that purpose, and that such purpose was formed de- liberately and premeditatedly, and that the mind of the de- fendant was fully conscious of the design to kill, and was not the " Bondurant v. State, 12S Ala. 31, " Nichols v. State, 102 Ark. 266, 143 27 So. 775. S. W. 1071. 433 CRIMINAL LAW. § 4O3 immediate offspring of rashness, negligence, or impetuous tem- per.^* (4) The court instructs the jury that if you find from the evi- dence that the defendant stabbed the deceased with a knife, wounding him in the bowels, and that germs entered the in- cision made by the stab or wound and peritonitis resulted from the entrance of said germs, from which disease the deceased died, the defendant in law would be responsible for the death, although you may further find that if he had been properly treated sooner he might have recovered.^^ (5) The court instructs the jury that if you believe from the evidence, that the defendant S. deliberately and intentionally shot the witness T. with a loaded revolver, as charged in the in- dictment, and that the defendant, J., was present and in any way or manner aided or advised, or encouraged such shooting, when it was not necessary, or apparently necessary, to save their own lives or prevent their receiving great bodily harm, then the jury should find the defendants both guilty.^" (6) The court instructs the jury that if you believe from the evidence in the case that J. B. was killed by a shot fired from a revolver by one L. C, then you must find the defendants not guilty, unless you further believe from the evidence beyond a reasonable doubt that the said defendants, or some one of them, acted with said C, or in concert with him, to do an unlawful act, and that the death of said J. B. happened and was occa- sioned by the doing or attempting to do such unlawful act.''' ''Jones V. State, 102 Ark. 195, 143 causes contributed to the death, such S. W. 907. as either lack of treatment or unskil- The instruction was held to be ful and improper treatment." It was proper and in this connection the Su- held, further, in this case that the preme Court of Arkansas says : "It instruction was not open to the crit- has been repeatedly decided by this icism that it ignored a plea of self- court that when one with a deadly defense, as this theory was fully cov- weapon inflicts upon another a dan- ered in other instructions. Bishop v. gerous wound, from which death en- State, 1Z Ark. 568, 84 S. W. 707. sues, he is guilty of murder or man- =° Smith v. People, 74 111. 144. slaughter, according to the circum- "Butler v. People, 125 III. 641, 18 stances of the case, whether the N. E. 338, 1 L. R. A. 211, 8 Am. St. wound was the mediate or immediate 423. cause of death, and though other 28 — Branson's Inst. 8 404 INSTRUCTIONS FORMS. 434 (7) The court instructs the jury that if you find beyond a reasonable doubt, going outside of the matter of self-defense, that premeditatedly, deliberately, and wilfully prepared for the use of the scissors blade, and used it in pursuance of that design, the degree of his criminality is murder in the first de- gree.^^ § 404. Homicide — Manslaughter. — (1) The court instructs the jury that if the defendant assaulted, beat, and wounded J. D. H. with a rock, as charged in the information, and thereby endangered his life, and without a design to effect the death of J. D. H., then such facts would have constituted the offense man- slaughter in the fourth degree, had the death of the said J. D. H. resulted therefrom.^' (2) The court instructs the jury that manslaughter is volun- tary homicide, committed under the immediate influence of sud- den passion, arising from an adequate cause, but neither justi- fied nor excused by law. By the expression, "under the immedi- ate influence of sudden passion," is meant : (a) That the provoca- tion must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation, (b) The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agi- tated by the passion arising from some other provocation or a provocation given by some other than the party killed, (c) The passion intended is neither the emotion of the mind known as anger, rage, sudden resentment, or terror, rendering it inca- pable of cool reflection. By the expression "adequate cause" is meant such as would commonly .produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper suf- ficient to render the mind incapable of cool reflection.*" (3) The court instructs the jury that in order to reduce a ''There is an ellipsis in this in- "State v. Ireland, 72 Kans. 265, 83 struction. After the words, "in pur- Pac. 1036. Definitions of offenses, see suance of that design," the following State v. Miller, 93 Mo. 263, 6 S. W. should be understood: the design, to 57; McDow v. State, 113 Ga. 699, 39 kill. With this supplied, the in- S. E. 295. struction is free from objection. State "Williams v. State (Tex. Cr.), 148 V. Jones, 71 N. J. L. S43, 60 Atl. 396. S. W. 763. 435 CRIMINAL LAW. § 406 voluntary homicide to the grade of manslaughter, it is necessary, not only that adequate cause existed to produce the state of mind referred to — that is, anger, rage, sudden resentment, or terror — ■ sufficient to render the mind of a person of ordinary temper in- capable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense." (4) The court instructs the jury that manslaughter in the fourth degree consists in the unlawful killing of a human being without design to effect death and without malice aforethought by an unlawful act of a dangerous character.^^ § 405. Homicide — ^Accidental killing. — The court instructs the jury that if you find from the evidence in the case that the deceased came to his death by the mutual mistake of the deceased and the defendant in the honest endeavor to avoid a collision both on the part of the deceased and the defendant, then in that event such killing would be accidental and not criminal, and your ver- dict should be not guilty. In connection with that instruction, gentlemen of the jury, I instruct you that if the defendant was at the time alleged in this information engaged in an unlawful act, to wit, the act of driving horses and a wagon upon the public highway in such manner as to endanger the lives and persons of others, and such unlawful act resulted in the killing of the per- son named in the information mentioned, it would then be imma- terial whether the kilHng was accidental or intentional; the de- fendant would be guilty.*^ § 406. Homicide — Cooling time. — The court instructs the jury that the reasonable time within which the law presumes that the blood has cooled and the angry passion aroused by the provocation has subsided is the time within which an ordinarily reasonable man would cool under like circumstances. In apply- " Williams v. State (Tex. Cr.), 148 guage, defines it, omitting none of the S. W. 763. essential elements thereof." State v. ""It is not necessary, nor is it al- Ireland, 72 Kans. 265, 83 Pac. 1036. ways the better plan," says the Su- See also State v. Miller, 93 Mo. 263, preme Court of Kansas in approving 6 S. W. 57; McDow v. State, 113 Ga. this instruction, "in defining an of- 699, 39 S. E. 295. f ense to use the exact words of the " State v. Stentz, 33 Wash. 444, 74 statute, if the court, in plain Ian- Pac. 588. § 407 INSTRUCTIONS FORMS. 436 ing this test, all circumstances attending the homicide are to be taken into consideration, including the nature and extent of the provocation, the physical and mental condition of defendant, his condition in life and peculiar situation at the time of the homicide, his education and habits and his conduct, manner and conversation throughout the altercation. In a vvrord, all pertinent circumstances may be considered, and the time in which an or- dinary man in like circumstances would have cooled is the rea- sonable time.** §407. Homicide — Malice. — (1) The court instructs the jury that in a case of homicide the law presumes malice from the use of a deadly weapon, and casts on the defendant the onus of repelling the presumption of malice, unless the evidence which proves the killing shows also that it was perpetrated without malice ; and, whenever malice is shown, and is unrebutted by the circumstances of the killing, or by other facts and evidence, there can be no conviction for any degree of homicide less than mur- der.*^ (2) The court instructs the jury that malice is not confined to ill-will toward an individual, but is intended to denote an action following from any wicked and corrupt motive — a thing done with a wicked mind — where the fact has been attended with such circumstances as evince plain indications of a heart regardless of social duties and fatally bent on mischief; hence malice is implied from any deliberate and cruel act against another, how- ever sudden, which shows an abandoned and malignant heart."" (3) The court instructs the jury that the burden of proof is upon the state to prove by competent evidence beyond a reason- able doubt not only that the defendant killed the said (name of person murdered), but also that the defendant killed the said (name of person murdered), as charged in the indictment, with malice aforethought; and you are not authorized to pre- sume from the fact of the killing being proven that the same was "State V. McCants, 1 Speers (S. "People v. Lucas, 244 111. 603, 91 Car.) 384. N. E. 659. '" Bondurant v. State, 12S Ala. 31, 27 So. 775. 437 CRIMINAL LAW. " 8 409 done with malice aforethought, unless you find that the killing was done with a deadly weapon previously prepared.*' §408. Homicide' — Defenses — Irresistible impulse. — The court instructs the jury that if you believe from the evidence, beyond a reasonable doubt, that the defendant did kill E. J. by shooting him with a gun, as charged in the indictment, but if you further believe from a preponderance of the evidence that at the very time he committed the act the defendant's mind was in an impaired and unsound state to such a degree that for the time being it overwhelmed the reason, conscience, and judgment, and that the defendant, in killing said J., acted from an uncontrollable and irresistible impulse, produced by such impaired and unsound condition of his mind, that deprived him of a knowledge of the right and wrong as to the killing, you will find him not guilty.** § 409. Homicide — Defenses — Intoxication. — ( 1 ) The court instructs the jury that, before drunkenness would excuse or lessen the degree of homicide, it must not be voluntarily produced for the purpose of nerving the defendant to carry out a pre-conceived design to take life, and it must be so complete, and to that ex- tent, that reason is dethroned and the defendant rendered in- capable of having a specific intent to take life. Partial intoxica- tion, which merely arouses the passions and influences the mind of the defendant, will neither mitigate nor lessen the degree of guilt, if he still knew right from wrong, the probable conse- quences and results of his acts, and was capable of a specific in- tent to take the life of the deceased.*" (2) The court instructs the jury that if you believe, from the evidence, beyond a reasonable doubt, that the defendant, when voluntarily intoxicated, committed the homicide charged in the indictment; under such circumstances as would have constituted such an act, by one not intoxicated, murder, then you are in- structed that such intoxication would not reduce the crime of the defendant from murder to manslaughter, nor would such in- toxication be any excuse or defense to the act.^" " Marion v. State, 20 Nebr. 233, 29 " Pless v. State, 102 Ark. 506, 145 N. W. 911, 57 Am. Rep. 825. S. W. 221. "Maxey v. State (Tex. Cr.), 145 ""Upstone v. People, 109 111. 169. S. W. 952. § 4IO INSTRUCTIONS FORMS. 438 § 410. Homicide — Defenses — Apprehension of great bod- ily harm. — (1) The court instructs the jury that if you be- lieve from the evidence in this case that the defendant was as- saulted by the deceased with such violence as to make it appear to the defendant at the time, acting without fault or carelessness on his part in coming to such conclusion, that the deceased mani- festly intended and endeavored to take his life or do him some great bodily harm, and that the danger was imminent and im- pending then in that case the defendant was not bound to retreat, but had the right to stand his ground, repel force with force, and, if need be, kill his adversary to save his own life or prevent his receiving great bodily injury, and it is not necessary that it shall appear to the jury to have been necessary.'^^ (2) The court instructs the jury that no one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made or in a mutual combat, is justified or excused in taking the life of his assailant, unless he is so endangered by such assault as to make it necessary to kill his assailant to save his own life, or to pre- vent a great bodily injury, and employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. He can not provoke the attack, bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary, on the ground of self- defense. He can not invite or voluntarily bring upon himself an attack with a view of resisting it, and, when he has done so, slay his assailant, and then shield himself on the assumption that he was defending himself. He can not take advantage of a ne- cessity produced by his own wrongful or unlawful act. After having provoked or brought on the combat, he can not be excused or justified in killing his adversary for the purpose of saving his own life, or preventing a great bodily injury, until he has in good faith withdrawn from the combat, as far as he can, and done all in his power to avoid the danger and avert the necessity of killing. H he has done so, and the other party pursues him, and "Striplin V. State, 100 'Ark. 132, 139 S. W. 1128. 439 CRIMINAL LAW. §411 the taking of life becomes necessary to save his life or to prevent his receiving great bodily injury, he is excusable.^^ (3) The court instructs the jury that if they have a reasonable doubt as to whether the defendant had a reason to beheve as a reasonable man, that he was in danger of being killed or se- riously injured by the deceased at the time he shot deceased, then you will acquit the defendant.'^^ (4) The court instructs the jury that if they find from the evidence that the defendant was sitting peaceably and quietly, and did nothing to bring on the difficulty in this case, and if you find that M. C. approached the place where the defendant was thus sitting, and menaced him in such language and tones and by such acts as caused the defendant to be apprehensive for his life, or apprehensive of great bodily harm, and if you find that the deceased undertook to intervene and disarm the defendant when the defendant was faultless, and thus commit an assault upon the defendant which the defendant had apprehended put his life in jeopardy, either from M. C. or from the deceased, then the de- fendant, if he, as I instructed you, was apprehensive for his life or great bodily harm, would have the right to act upon such ap- parent danger, and, if he acted in good faith, he could slay his adversaries in order to save himself from death or great bodily harm." §411. Homicide — Defenses — Threats. — (1) The court in- structs the jury that in the case of homicide no mere words used by the deceased toward the defendant, however abusing or in- sulting, will reduce the offense or degree of homicide to less than murder.^° (2) The court instructs the jury that though mere threats are insufficient to justify a killing as in self-defense, if the jury be- lieve that, prior to the homicide, deceased made threats of a violent nature against the defendant and the evidence leaves the jury in doubt as to what the acts of the deceased were at the "■•Hankms v. State, 103 Ark. 28, US "Johnson v. State, 125 Tenn. 420, S. W. 524. 143 s. W. 1134. Teople V. Mitchell, 129 Cal. 584, =Bondurant v. State, 125 Ala. 31, 62 Pac. 187. See also State v. Jones, 27 So. 775. 71 N. J. L. 543, 60 Atl. 396. § 41 1 INSTRUCTIONS FORMS. 44O time of the homicide or as to what defendant might properly have apprehended in respect to the intentions of deceased, the jury are entitled to consider the threats in connection with the other evidence in determining who was probably the aggressor, and in determining what apprehension might reasonably arise in the mind of defendant from the conduct of the deceased.^^ (3) The court instructs the jury that the "offense," as de- fined by law and as charged in the indictment, is complete if ma- licious threats were made, as charged in the indictment, to the persons named therein, to wit, F. C. and J. C. with intent to ex- tort money or to compel the persons so threatened to do an act against their will whether the person so threatened gave any money or not/' (4) The court instructs the jury that the past conduct of the deceased to defendant, his threats and bearing — in fact, all the facts and circumstances in the case — should be considered by the jury. An act, standing alone, may not be sufficient provocation, but may be ample when one is a series of similar acts, or when it has been preceded by an aggravating course of conduct, whether similar or not to the act committed at the time of the homicide."* (5) The court instructs the jury that where a defendant ac- cused of murder seeks to justify himself on the ground of threats against his own life, he is permitted to introduce evidence of the threats made, but the same can not be regarded as affording a justification for the killing, unless it be shown that at the time of the homicide the person killed by some act then done mani- fested an intention to execute the threats so made ; and the same rule would apply where others had communicated to the accused a threat or threats purporting to have been made by the de- ceased, provided the accused believed them to be true and be- lieved that deceased made them, even though you may believe no such supposed threats had in fact been made. Now, if you be- lieve from the evidence that the deceased had made a threat or threats against the life of the defendant, or that other persons "Mize V. State, 36 Ark. 661 "Maxey v. State (Tex. Cr.), 14S S. "' State V. Browning, 1S3 Iowa 37, W. 952 133 N. W. 330. 441 CRIMINAL LAW. §41^ had communicated to defendant a threat or threats purporting to have been made by deceased, against defendant's hfe, prior to the killing, and that such threats, or purported threats, had been communicated to defendant before the homicide was committed, and the defendant honestly believed such information of threats to be true, and you further believe, from the evidence, that at the time of the killing the deceased by some act then done, word spoken, or made some demonstration manifesting an intention to execute the threats, or purported threats, so made, which act, word, or demonstration reasonably appeared to the defendant, viewed from his standpoint alone, that the threats were about to be executed, and that his life was then in danger, or his person of serious bodily injury, then and in such case the defendant was not bound to retreat, but could stand his ground, and would be justified in slaying the said A., and, if you so believe from the evidence, you will acquit the defendant.^' (6) The court instructs the jury that if any person shall, in the presence and hearing of another, curse or abuse such per- son, or use violently abusive language to such person, concern- ing him or any of his female relatives, under circumstances rea- sonably calculated to provoke a breach of the peace, he shall be deemed guilty of a misdemeanor."" §412. Homicide — Defenses — Self-defense. — (1) The court instructs the jury that the apparent necessity which will excuse the taking of human life under the doctrine of self-defense, in cases of homicide, involves two considerations: First, the de- fendant himself must have entertained an honest belief in the existence of such necessity; and, second, the circumstances sur- rounding him must have been such as to impress a reasonable man, under the same state of facts, with the belief of his im- minent peril, and of the existence of an urgent necessity to take the life of his assailant, as the only apparent alternative of sav- ing his own life, or else of preventing the infliction on him (the defendant) of grievous bodily harm." "Williams v. State (Tex. Cr.), 148 "Bondurant v. State, 125 Ala. 31, 27 S. W. 763. So. 775. " Baumgarner v. State, 64 Tex. Cr. 165, 142 S. W. 4. § 412 INSTRUCTIONS FORMS. 442 (2) The court instructs the jury that if you believe from the evidence that the defendant sought, brought on, or voluntarily entered into a difficulty with the deceased for the purpose of wreaking vengeance upon him, or if you find from the evidence that he shot and killed deceased, at the time when he had, be- cause of the acts of the deceased, no reasonable apprehension of immediate and impending injury to himself, and did so from a spirit of retaliation and revenge for the purpose of punishing the deceased for past injuries done him, then the defendant can not avail himself of the law of self-defense, and you should not acquit him on that ground, no matter how great the danger or imminent the peril, to which the defendant may have believed himself to have been exposed during the difficulty.*^ (3) The court instructs the jury that if you find that J. was first attacked by D. in such a way that, to save his own life, it was necessary for him to kill D., the defense of self-defense is made out; and, if there is a reasonable doubt in your mind whether this defense is made out, the defendant is entitled to the benefit of that doubt. ''^ (4) The court instructs the jury that you are charged that threats made by a defendant will not deprive him of his right of self-defense. Therefore, if you find from the evidence that the defendant, J. H. S., made any threat or threats against the de- ceased, P. T., the fact of his having made such threat or threats did not deprive the said defendant, J. H. S., of his right of self- defense against an attack or threatened attack by said deceased, P. T. And if the deceased. P., at the time of the homicide was making or about to make an attack on defendant, or if it reason- ably appeared to defendant that such attack was being made or about to be made, viewing the facts from defendant's standpoint, his right to defend his person from such attack or threatened attack would not be abridged by any previous threat or threats." (5) The court instructs the jury that any citizen of this state has a right to defend the possession of his home against any un- ''Caughron v. State, 99 Ark. 462, 60 Atl. 396. See People v. Mitchell, 139 S. W. 315. 129 Cal. 584, 62 Pac. 187. " State V. Jones, 71 N. J. L. 543, " Stanley v. State, 62 Tex. Cr. 306, 137 S. W. 703. 443 CRIMINAL LAW. §412 lawful or violent intrusion by another without his consent, and his right to defend his home is governed by the same rule which governs a man's right to defend his person. Now, if you find from the evidence in this case beyond a reasonable doubt that the defendant, A. O., shot and thereby killed the deceased, W. L., but that at the time of said shooting and killing the said W. L. was attempting to, or the defendant had reasonable grounds to believe that the said W. L. was attempting to, make an unlawful and forcible intrusion upon the home of said defendant, A. O., against the consent of said A. O., armed with a knife or any other kind of deadly weapon, and that the defendant believed at the time that it was necessary for the protection of his home or his person against an unlawful and violent intrusion upon the same by the deceased, L., and you further believe that said belief on the part of the defendant was reasonable, viewing the same from the standpoint of defendant at the time, then the defend- ant had a right under our law to protect his person or his home, even to the extent of taking the life of the deceased L. And if you find from the evidence in this case you will find the de- fendant not guilty, or, if under all the testimony in this case you have a reasonable doubt on this question, you will give the de- fendant the benefit of it, and render a verdict of not guilty.^' (6) The court instructs the jury as a part of the law of self- defense that it is not essential to the right of self-defense that the danger should in fact exist. If, to defendant, it reasonably appeared that the danger in fact existed, he had the right to de- fend against it to the same extent and under the same rules which would obtain in case the danger had been real. The de- fendant may always act upon reasonable appearances of danger, and whether the danger is apparent or not is always to be de- termined from the standpoint from which the defendant viewed it at the time he acted."'" (7) The court instructs the jury that if you believe from the evidence that the deceased was a man of superior strength to de- fendant, and that by reason of such superior strength he was re- garded by defendant as able to do him serious bodily injury or "'Oldham v. State, 63 Tex. Cr. S27, "Treadway v. State (Tex. Cr.), 144 142 S. W. 13. S. W. 655. § 413 INSTRUCTIONS FORMS. 444 kill him without arms, and that deceased was unarmed, and de- fendant knew of said fact, if it was a fact, and further believe from the evidence that said A. assaulted defendant, or by his words or acts produced in the mind of defendant a reasonable apprehension or fear of assault, or if you believe from the evi- dence that defendant had been informed that deceased had threat- ened to kill him or do him serious bodily harm, and that at the time of the difficulty deceased did some act manifesting an in- tention to execute such threat, or threats, and that said act pro- duced a reasonable apprehension in defendant's mind that de- ceased was about to execute said threat, defendant had the right to defend himself with all necessary force, viewing the matter from his standpoint in the light of all the surrounding facts and circumstances, including the character and reputation of de- ceased."'' § 413. Homicide — Verdict fixing punishment. — The court instructs the jury that if your verdict be against the defendant, finding him guilty of murder in the first degree or of murder in the second degree, then you will fix his punishment, and so state in your verdict, but, if you find him guilty of manslaughter, then you will simply state that fact in your verdict, giving his age, but you will not fix his punishment. In addition to the forego- ing finding, it is necessary for the jury to find as to the sanity of the defendant at the time of the commission of the alleged homicide. It is the law of this state that, when the defense of insanity is interposed by any male person accused of a felony, the court or jury trying the cause shall make a finding both as to the sanity of said defendant at the time so claimed, and as to whether he committed the act as charged. And if it shall be found in favor of the defendant on his plea of insanity, but against him as to the commission of the act charged, he shall upon order of the court be committed to and confined in the In- diana colony for the insane criminals in like manner and on such conditions and for such terms as is now provided for by law for ^^ Carver v. State (Tex. Cr.), 148 S. W. 746. 445 CRIMINAL LAW. § 414 the confinement of insane criminals in a state hospital for the in- sane.^^ § 414. Larceny. — (1) The court instructs the jury that the information charges that on the day of , , he (the defendant) feloniously stole and drove away a heifer, the prop- erty of K. To constitute the crime here charged, there must have been a wrongful taking and driving away of the heifer, with the felonious intent of depriving the owner of the heifer by appro- priating her to the use of another. A mere taking and driving her away would not constitute the crime, therefore, although the taking might have been wrongful or unlawful. A person may wrongfully take another's property through mistake, in which case it would not " constitute a crime, although it might render the person taking it liable in a civil action. To make it a crime, it must have been taken with a criminal intent. Where a person, knowing that a thing is the property of another, secretly takes it from that other's possession with the intention to deprive him of it and appropriate it to the taker's own use, there is a criminal intent, — a feloniously taking. To drive away another's cattle from a pasture where he had placed them, with such knowledge and intent, would constitute the crime charged, — a theft of such person's cattle. * * * ^^(j ^hey claim to have proved by a number of witnesses that the heifer which was then replevied was the one which K. turned into the pasture, and which was in the pasture during the summer. And thus the state claims to have proved the ownership of the heifer in K. ; that the accused wrong- fully stole, took, and drove her away out of the pasture where she rightfully was; and that he did it knowingly, with criminal in- tent to appropriate her to his own use and so deprive K. of his property. This, if proved, would establish the guilt of the ac- cused.®* (2) The court instructs the jury that where one in good faith takes the property of another, honestly believing it to be his own. or that he has a right to its possession, he is exempt from the charge of larceny, there being no criminal intent ; and, therefore, "Weigand v. State, 178 Ind. 623, "State v. Main, 75 Conn. SS, 52 99 N. E. 999. Atl. 257. § 414 INSTRUCTIONS FORMS. 446 if the jury believe from the evidence that the defendant, H., took the cow of R., as alleged in the indictment, honestly believing it to be his own, or that he had a right to its possession, the jury should find him not guilty; but the belief should be an honest one, and not a mere pretense to shield himself from conviction. Fur- thermore, if the jury have a reasonable doubt, arising from the evidence, as to whether H. took the said cow, having such an honest belief as to his right to take it, the juiy should give him the benefit of such reasonable doubt and acquit him; in other words, if they have a reasonable doubt of the felonious intent of the defendant in taking the cow they should acquit the de- fendant.'" (3) The court instructs the jury that if they believe from the evidence beyond a reasonable doubt, that the defendants, or either of them, are guilty of stealing gas as charged, and that they, or either of them, had been stealing gas for any number of days continuously prior to the day of , , in fixing the value of the property stolen you may add together the various values of the amounts of gas stolen from day to day during the time preceding the discovery of the false connections, if any, on the day of , that such takings from day to day were continued. That is, you may judge, from all the surrounding facts and circumstances as shown by the evidence, how long the said gas, if any, have been unlawfully taken through said false connections prior to the day of continuously, and you may add together the total sum of the various amounts taken on the different days continuously before the said day of ." (4) The court instructs the jury that the mere taking of prop- erty by one from another does not constitute larceny. To consti- tute larceny, such taking must be a felonious taking, — a taking " The contention was made that the preme Court of Florida says : "We do last paragraph of the charge was er- not think the charge susceptible of any roneous in using the word "whether" such construction; but, on the con- — that it had a tendency to mislead trary, think it stated the law cor- the jury into the belief that the bur- rectly." Higginbotham v. State, 42 den was on the defendant to prove Fla. 573, 29 So. 410, 89 Am. St. 237. beyond a reasonable doubt that he "Woods v. People, 222 111. 293, 78 took the cow, honestly beHeving that N. E. 607, 7 L. R. A. (N. S.) 520, 113 he had a right to take it. The Su- Am. St. 415. 447 CRIMINAL LAW. § 414 with the intent on the part of the taker then and there to steal the same/^ (5) The court instructs the jury that "larceny" is the felonious taking of the property of another without the knowledge or con- sent of that other, and with the intent of the party taking, at the time of the taking, to permanently deprive the owner thereof, and with the further intent at said times to wholly and perma- nently appropriate it to the use of the party taking/^ (6) The court instructs the jury that larceny is the wrongful and unlawful taking and carrying or leading away of a thing, without claim of right, made in good faith, and without the owner's consent, with the intention of permanently converting it to a use other than that of the owner/* (7) The court instructs the jury that one of the distinguish- ing, and perhaps the greatest, difference between a taking and a carrying away to make it larceny, and a taking and carrying away to make it trespass, is the intent with which those acts are done. It is not every taking and carrying away that is a larceny. It becomes larceny when that taking and carrying away is with a fraudulent intent; that is, a purpose to steal. If, to illustrate, a man should take and carry away some article of property un- der an honest belief that it was his property, or that he had a right to remove it, or if he should take and carry away some ar- ticle of property for any other purpose than the intent to steal it, it would not be larceny; it would be trespass. If, however, he took and carried away the property with a felonious intent to steal it, to deprive the true owner of that property, illegally and wrongfully to convert it to his own use, then it is a larceny, and you must find the defendant guilty in such a case.''^ (8) The court instructs the jury that the evidence shows that the defendant told F. G. that the ring which it is claimed the de- fendant had in his possession at the time the said F. G. arrested him was bought by the defendant. Now, if you should believe from the evidence that the ring which was found in the posses- '" People V. Gordon, 133 Cal. 328, 65 " Philamalee v. State, 58 Nebr. 320, Pac. 746, 85 Am. St. 174. 78 N. W. 625. " State V. Minor, 106 Iowa 642, 77 " State v. Garvin, 48 S. Car. 258, 26 N. W. 330. S. E. 570. § 415 INSTRUCTIONS FORMS. 448 sion of the defendant, if any ring was found in his possession, was not the ring claimed to have been lost by A., or that the de- fendant bought said ring from any person in H. or anywhere else, or if you should have a reasonable doubt as to either of said matters, you will acquit the defendant and say by your verdict, "Not guilty."" § 415. Larceny — Possession of stolen property by accused. — (i)' The court instructs the jury that the mere possession of stolen property, unexplained by the defendant, however soon after the taking, is not sufficient to justify a conviction. It is merely a guilty circumstance, which, taken in connection with other testimony, is to determine the question of guilt.''' (2) The court instructs the jury as a matter of law, that pos- session of stolen property, immediately after the theft, is suffi- cient to warrant a conviction, unless attending circumstances or other evidence so far overcomes the presumption thus raised as to create a reasonable doubt of previous guilt ; when an acquittal should follow.'* §416. Liquor law violations. — (1) The court instructs the juiy that in determining^ whether the law has been violated by the defendant in selling intoxicating liquors, you may take into consideration the application indorsed by him and offered in evidence ; the habits of the purchaser with reference to the use of intoxicating liquors; the frequency of such applications; the amount of liquor purchased by any one person; whether or not the applications for liquors were accompanied with a physician's prescription therefor ; and from these matters, so far as they ap- pear in the evidence, and all other matters throwing light thereon, determine whether the defendant violated the law by selling in- toxicating liquors in a building used by him for that purpose." (2) The court instructs the jury that to use as a medicine is to use as a remedy for some disease, or as a medical agent in the "Moray v. State (Tex. Cr.), 145 ™ Sahlinger v. People, 102 III. 241. S. W. 592. ™ State v. SkiUicorn, 104 Iowa 91, "People V. Luchetti, 119 Cal. 501, 1Z N. W. 503. 51 Pac. 707. 449 CRIMINAL LAW. §4l6 treatment thereof. To use for medical purposes is to use for the cure or alleviation of some bodily disorder.*" (3) The court instructs the jury that under the laws of this state, whoever establishes or uses any building as a place for selling or keeping for sale intoxicating liquor in violation of law is guilty of the crime of nuisance, and proof of a single sale in a building so used for that purpose by the party making the same will warrant a conviction for this crime.*^ (4) The court instructs the jury that if you find that a per- son commonly, or frequently, or whenever the opportunity of- fers, uses intoxicating liquors as a beverage, you would have the right to infer that he was in the habit of so doing.'^ (5) The court instructs the jury that with respect to sales to persons who are in the habit of using intoxicating liquors as a beverage and minors, the law goes further. The holder of a permit must personally know that the person applying for liquors is not a minor, nor in the habit of using intoxicating liquors as a beverage, before he has the right to sell the same ; and, if he sells to a person who is in the habit of using intoxicating liquors as a beverage, then, so far as this case is concerned, it will be im- material whether the permit holder knew of that fact or not, and he will be liable in the same manner as if he held no permit.^^ (6) The court instructs the jury that the statutes of the state especially direct that you should so construe the law as to pre- vent its evasion, and no device, art, or contrivance can avail the defendant, if you find there was a substantial violation of the law.** (7) The court instructs the jury that evidence of sale, without competent evidence tending to prove such sale illegal, can not be taken as prejudicial to the defendant, or as tending to prove his guilt under this complaint. That under the license the defend- ant had a right to keep and expose liquors for sale upon the prem- ™ State V. Skillicorn, 104 Iowa 97, 73 "^ State v. Skillicorn, 104 Iowa 97, 73 N. W. S03. N. W. 503. "■ State V. Skillicorn, 104 Iowa 97, 73 " State v. Skillicorn, 104 Iowa 97, 73 N. W. 503. N. W. 503. " State V. Skillicorn, 104 Iowa 97, 73 N. W. 503. 29— Branson's Inst. § 4l6 INSTRUCTIONS FORMS. 45O ises where they were found, and, unless it be proved by com- petent evidence that the defendant kept such liquors for unlawful use, he can not be convicted. In order to prove that the defendant has made an illegal sale of intoxicating liquors, the government must prove not only that the liquors were bought for an unau- thorized purpose, but that they were sold by the defendant with guilty knowledge and belief. That is to say, not only must there have been an illegal intent on his part when he sold the liquors, but there must have been an illegal intent upon the part of the person who purchased them. The mere possession of liquors by the defendant is no evidence tending to prove his guilt on this complaint. I have given you that instruction substantially, gen- tlemen. I give it to you now in connection with that. Unless they are kept in such a manner — in such quantities — as to lead you to believe and to satisfy you that they were kept for an il- legal purpose.^^ (8) The court instructs the jury that the law allows druggists to sell liquor, as you have already been instructed, for medicinal, mechanical, scientific, and sacramental purposes, and for that alone. The law absolutely prohibits the sale of liquor by drug- gists to be used as a beverage or to be drank on the premises. There are other restrictions and prohibitions which it is not nec- essary to name, as they are not involved in this case. So long as a druggist complies with the law in these regards, he is justified in making sales. ^^ (9) The court instructs the jury that the question for you to determine is, was this cider in a state of fermentation on the day of , when these two men got it ? If it was what is commonly called "sweet cider" (that is, cider that had not begun to ferment), there is no offense proved against him. It is no of- fense to deliver a man a gallon of cider that is not commencing to ferment; but if it has commenced to ferment, and is in any stage of fermentation, then, under the law, it is an offense to sell it or furnish it to another. I do not know that this word "fer- mentation" needs any definition. It is a term you well under- stand the meaning of. Sometimes we say cider has "begun to *' Commonwealth v. Tate, 178 *' People v. Hilliard, 119 Mich. 24, Mass. 121, 59 N. E. 646. 11 N. W. 306. 451 CRIMINAL LAW. § 416 work." It means just about the same thing. The terms "hard cider" and "sweet" have been used by counsel quite a little in their talk to the jury and in the testimony. It is not a question, really, whether it was sweet cider or hard cider. It is a ques- tion whether this cider, on the day of last, — this gal- lon of cider, — whether it was fermented or not. Of course, if you mean, by "fermented cider," hard cider, why then, the question is the same. It is not necessary that the cider should be intoxicating. Cider, after it reaches a certain stage of fer- mentation, is regarded, and is as a matter of fact, intoxicating; but cider may commence to ferment, and be in a state of fer- mentation, so that it could be called "fermented cider," and yet it might not be intoxicating. It is not necessary that this cider should have gone to that degree of fermentation, to make it in- toxicating. All that is necessary is that it should be fermented. Was this cider fermented on the day of ? It is not a question of degree, providing it is fermented.*^ (10) The court instructs the jury that, in order to convict the respondent, you must be satisfied from the evidence beyond a reasonable doubt that between the said dates the respondent not only kept a place on the ground floor of said building in , but that he kept it for the purpose of selling, giving away, or furnishing intoxicating liquors. If it should appear to you from the evidence that the respondent at times had kept in his posses- sion intoxicating liquors, purchased by him for his own use, and that on one or more occasions a party or parties helped them- selves to such liquors while the respondent was intoxicated to such extent that he was not aware and did not know what was going on, then, under those circumstances, respondent would not be guilty of any offense, and, if the evidence in the case shows no more than this, then your verdict must be "Not guilty." It is provided by the local option law that proof of a single sale of liquor at the time and place alleged in the information shall be prima facie evidence of the keeping of a place where liquors are *' People V. Kinney, 124 Mich. 486, W. 47S; Redd v. State (Tex. Cr.), 83 N. W. 147. See also Ingram v. 11 S. W. 214; State v. Gregory, 110 State, 40 Tex. Cr. 117, 90 S. W. 1098; Iowa 624, 82 N. W. 335. State V. Currie, 8 N. Dak. S4S, 80 N. § 41 6 INSTRUCTIONS FORMS. 452 sold and kept for sale. That does not mean that proof of one or more illicit gifts is sufficient to warrant you in finding be- yond a reasonable doubt that the respondent kept a place for the sale of intoxicating liquors, as alleged in the information, if, under all the facts and circumstances in the case, you are not satisfied beyond a reasonable doubt that he did ,keep a place for the illegal selling of liquors. And, if you are not so satisfied, then, notwithstanding you may find it to be proved that the respondent did on one or two occasions give away liquor, you would not be at liberty to find him guilty. The law provides that proof of a single sale within the time covered by the information shall be presumptive evidence that the respondent did keep a place where intoxicating liquor was sold or kept for sale. You should not un- derstand, however, that such proof is conclusive evidence thereof. And if, in view of all the other facts and circumstances in the case, you are not satisfied beyond a reasonable doubt that the re- spondent, between the dates alleged in the information, kept a place as charged therein, for the sale, giving away, or furnishing of liquor, then you should acquit.** ( 1 1 ) The court instructs the jury that it is not necessary that any witness testify positively as to the particular name of the liquor. It is sufficient, if you are satisfied from all the facts and circumstances in evidence that the liquor so sold, if any, was in- toxicating liquor of the kind generally known as whiskey. The name or lack of name given to such liquor is not material, if the kind and character of such liquor is shown by the evidence to be as alleged in the information.*" (12) The court instructs the jury that if you believe from the evidence that the transaction testified to by the witness T. was not a bona fide loan of whiskey by defendant to witness, to be re- turned in kind by witness, or if you believe that the transaction was merely a subterfuge to evade the law, to conceal an unlawful transaction, then you will find the defendant guilty."" " People V. Bacon, 117 Mich. 187, 558, 89 S. W. 829. See Cantwell v. 75 N. W. 438. State, 47 Tex. Cr. 511, 85 S. W. "Nixon V. State, 92 Nebr. 115, 138 19; Springfield v. State, 125 Ga. 281, N. W. 136. 54 S. E. 172; Commonwealth v. Co- •"Buckner v. State, 48 Tex. Cr. gan, 107 Mass. 212. 453 CRIMINAL LAW. § 416 (13) The court instructs the jury that if you behave from the evidence that the whiskey alleged to have been sold was shipped to witness A., and that said witness did not order nor accept the same, then said whiskey was the property of the shipper; and if you believe from the evidence beyond a reasonable doubt that the defendant became interested in the sale or delivery of said whis- key to F. H. G., then he would be guilty, and you should so find."^ (14) The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant, B. I., signed the name of N. A. in order to get the whiskey out of the express office, and that he did thereby procure said whiskey and deliver the same to F. H. G., and that said I. himself, or in con- junction with G., paid the express charges thereon due, then he would be guilty.'^ (15) The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that between the month of , , and the day of , , the sale of intoxi- cating liquors was prohibited in H. county, , under the laws of this state, and that the defendant B. D., did at any time be- tween said dates in H. county, , unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, as alleged in the indictment, and if you believe that the defend- ant unlawfully in said county and state between said dates and at or about the dates alleged in the indictment did make as many as at least two different sales of intoxicating liquors to the parties named in the indictment, then you will find the defendant guilty as charged ; but, unless you so believe, you will acquit him.°^ (16) The court instructs the jury that if you believe from the evidence that C. C. B., on or about the day of , in the year , in the county of . , and state of , did receive from the hands of the A. Express Company a package of in- toxicating liquors, and if you further believe from the evidence that the said intoxicating liquors were shipped by the H. Liquor " Ingram V. State, 49 Tex. Cr. 117, ""Hickman v. State (Tex. Cr.), 90 S. W. 1098. 146 S. W. 914. " Ingram v. State, 49 Tex. Cr. 117, 90 S. W. 1098. §4^7 INSTRUCTIONS — FORMS. 454 Company of , through said expi'ess company, upon a written order signed by said C. C. B., and that said C. C. B. paid the price of the goods and also the express charges, and if you fur- ther beHeve that the goods shipped were consigned to the A. Express Company at , by the seller, and if you further be- lieve that the said A. Express Company is a common carrier, and if you further believe from the testimony that the said order was a bona fide order, and was subject to the approval, of the seller, then in that event the defendant would not be guilty and you should so fiind.°* (17) The court instructs the jury that if defendant kept any quantity of beer at his place of business, for his own use, or if he permitted his stepson to keep beer at said place of business, for his own use, such fact would not be a violation of the law. And if you believe that the liquors testified about were kept for the use of the owner, or owners, then you should acquit defendant, unless you believe from the evidence, beyond a reasonable dout^t, that liquors were kept by defendant on said premises for the pur- pose of sale. And if you have a reasonable doubt as to whether such liquors were kept for sale or not, you should acquit defend- ant and say by your verdict, "Not guilty."^'' (18) The court instructs the jury that a drunkard is one with whom drunkenness has become a habit ; one who habitually drinks to intoxication ; a sot. Now, if you find this defendant was drunk on the 5th of April, as claimed here by the people, — and, to carry out that definition, — on that day and six weeks prior to that date ; that is to say, that drunkenness was habitual, that it became a habit, that he habitually drank to intoxication, — why it will be your duty to say that he drank to intoxication."^^ §417. Nuisances. — The court instructs the jury that the defendants are liable only for such results as flow directly, nat- urally and proximately from the pond and dam. Therefore, if you find that the pond and dam are the cause of the nuisance, you "Hirsch v. State (Tex. Cr.), 96 ""a People v. Radley, 127 Mich. 627, S. W. 40. 86 N. W. 1029. ""Williams v. State (Tex. Cr.), 148 S. W. 306. 455 CRIMINAL LAW. § 4I9 should convict the defendants; but if other causes or agencies to which the defendants have not contributed and which did not arise from their agency so affected the pond and dam as to pro- duce the cause of the sickness, then such sickness would be at- tributed by law to such agencies and not to the pond or dam, and you should acquit the defendants.*"^ § 418. Prostitution. — The court instructs the jury that even though the testimony should show that the defendant was married to L. B., his wife, and that she is a prostitute and lived in a house of prostitution, that is not enough of itself to warrant his conviction on this charge, but you must be satisfied by the evidence, beyond all reasonable doubt, that he allowed or per- mitted her to be placed in or to remain in a house of prostitution by some act or declaration or omission of his ; that is, she was in a house of prostitution by his consent."^ § 419. Refusal of peace officers to perform their duties. — (i) The court instructs the jury that if they find from the evi- dence beyond a reasonable doubt that defendants were policemen and peace officers of the city of in said county and district, and that there was at the time set out in the indictment (or at any time within months before the return of the indictment) unlawfully and riotously assembled at the city jail in the city of an unlawful mob or riotous people, more than in number, for the purpose of doing an unlawful act, and if you fur- ther find that said defendants were present at any time while such mob was assembled, and witnessed or knew that said unlawful and riotous assembly of persons had gathered at the city jail for an unlawful and felonious purpose, and neglected, faikd, or refused to arrest or cause to be arrested, the persons so assembled or any of them, who had so unlawfully and riotously assembled at said city jail, you will find the defendants guilty.'* (2) The court instructs the jury that if the defendants were unable to arrest the persons riotously and unlawfully assembled "State V. Holman, 104 N. Car. "Pennewell v. State, 105 Ark. 32, 861, 10 S. E. 758. 150 S. W. 114. "People V. Bosquet, 116 Cal. 75, 47 Pac. 879. § 420 INSTRUCTIONS FORMS. 456 on account of the large number there assembled, it was their duty to command all persons present to aid them, and, if they were un- able to make arrests, and neglected, failed, or refused to command to their aid persons present, you will find the defendants guilty."* § 420. Rape, — The court instructs the jury that it was the duty of G. H. to use all means within her power consistent with her safety to prevent the defendant from accomplishing his de- signs, when said alleged assault was made upon her.^ (2) The court instructs the jury that if the prosecutrix was incapable of resistance through fear, or if resistance was en- tirely useless, there might be rape if no resistance was in fact made. It is to be expected that resistance will 'be made, unless the mind of the woman is so overcome by fear that she is in- capable of resistance, or unless there is such an exhibition of brute force as to make resistance useless or impossible.^ (3) The court instructs the jury that it is not the law of the state that a woman assaulted with an intent to commit rape upon her is required to resist by all violent means within her power. The law requires only that the case be one in which the woman did not consent. Her resistance must not be mere pretense, but in good faith. The law does not require that the woman shall do more than her age, strength, and all attendant circumstances make it reasonable for her to do in order to manifest her oppo- sition. The question of resistance is a question of fact for you to determine and find, and not a question this court can decide.'' (4) The court instructs the jury that it is their province to determine the weight and credibility to be given the testimony of a female upon whom it is alleged in an information that a rape has been committed, and who testifies to the facts and circum- stances of such rape as of any other witness testifying in the case. And, if such testimony creates in the mind of the jury a satis- factory conviction and belief beyond a reasonable doubt of the defendant's guilt, it is sufficient of itself, without other corrob- "Pennewell v. State, 105 Ark. 32, 'State v. Long, 72 Conn. 39, 43 ISO S. W. 114. Atl. 493. 'Threet v. State (Ark), 161 S. W. »Rahke v. State, 168 Ind. 615, 81 139. N. E. 584. 457 CRIMINAL LAW. § 42O orating circumstances or evidence, to justify a verdict of guilty of rape upon tiie trial of the case.* (5) The court instructs the jury that the consent of the wo- man from fear of personal violence is void, and, though a man lays no hands on a woman, yet if, by an array of physical force, he so overpowers her that she dares not resist, his carnal inter- course with her is rape.° (6) The court instructs the jury that in cases of this character the party or woman alleged to have been injured is a competent witness; but the degree of credit given her testimony, her evi- dence, depends more or less upon the concurrence of the circum- stances of the fact with her testimony. You may look to the evidence to see whether she concealed the injury for any consider- able length of time after she had an opportunity to complain. Did she, or not, make pursuit of the ofifender ? Was the place of the act said to have been done remote from neighbors or passen- gers, or was it near a neighbor or recourse of passengers? Did she make any outcry or did she not, or did she make no outcry where the act was done when and where it is possible she might have been heard by others? These and all other circumstances in the case may be taken into consideration by the jury in deter- mining what weight they will give her testimony.' (7) The court instructs the jury that upon the trial of a de- fendant accused of the crime of rape the fact that the prosecutrix made prompt and early complaint of the wrong and injury com- mitted upon her person, and to her character and chastity, is in- dependent and original evidence, and is admissible and may be re- ceived and considered by the jury in corroboration of her other testimony given in the case.' (8) The court instructs the jury that if you find and believe from the evidence in this case, and beyond a reasonable doubt, that at the county of J. and state of , on or about the day of , 19 — , the date of the filing of the information in this case, the defendant N. J. H., did unlawfully and feloniously 'People V. Keith, 141 Cal. 686, 75 'Ryals v. State, 125 Ga. 266, 54 S. Pac. 304. E. 168. ■^ Doyle V. State, 39 Fla. 155, 22 So. 'People v. Keith, 141 Cal. 686, 75 272, 63 Am. St. 159. Pac. 304. § 420 INSTRUCTIONS FORMS. 458 have carnal knowledge of the witness D. D., and if you further find that said D. D. was an unmarried female of the age of more than fourteen years and less than eighteen years at said time, and further find that said D. D. was of previously chaste character, and you further find that the defendant was over the age of six- teen years at the time, you will find the defendant guilty as charged in the information, and so say by your verdict.^ (9) The court instructs the jury that, if the acts as testified to by the witness were done by the defendant without the intention of having carnal knowledge of her, the prosecuting witness, then they only amounted to indecent and lascivious conduct and however reprehensible morally, did not constitute an assault to commit a rape." (10) The court instructs the jury that the defendant is not guilty unless B. B. was at the time complained of, and had been for a reasonable time theretofore a woman of chaste conduct. Though there had been formerly unchastity on her part, this does not exonerate the defendant, if for a reasonable time before the acts complained of she had been leading a virtuous life." (11) The court instructs the jury that if you believe from the evidence that the prosecuting witness told her father of the as- sault alleged to have been made on her, at the earliest oppor- tunity, then that is a corroborating circumstance, tending to sus- tain the truth of her statements.^^ (12) The court instructs the jury that if you believe from the evidence beyond a reasonable doubt, that the defendant S. had sexual intercourse with N. H., yet if you further believe from the evidence that she consented thereto, though reluctantly, or if she refused to have sexual intercourse with S. and that such refusal was not in earnest, but feigned, and that she consented to such sexual intercourse, or if at first she refused, and for a time in earnest and good faith, to have sexual intercourse with S., but that notwithstanding that she was coaxed and persuaded to have such sexual intercourse, without being forced to do the act ' State V. Henderson, 243 Mo. 503, " Berry v. Commonwealth, 149 Ky. 147 S. W. 480. 398, 149 S. W. 824. • State V. Bowers, 239 Mo. 431, 144 " Bean v. People, 124 111. 576, 16 S. W. 97. N. E. 656. 459 CRIMINAL LAW. §421 of sexual intercourse, that then, and in either case, the defend- ant S. is not guilty of committing the crime of rape as charged in the indictment, and in such case it is your duty, as jurors, un- der the law, and under your oaths, to acquit all of the defend- ants." (13) The court instructs the jury that, from the peculiar char^- acter of rape and assault with intent to rape, care is to be used in regard to them. The injured female is usually a competent witness in such cases ; but the degree of credit to be given to her evidence depends more or less upon the concurrence of the cir- cumstances of the fact with her testimony. For instance, if she be of good fame, if she presently discovered the offense, made pursuit after the offender, showed circumstances and signs of the injury, if the place where the fact was done was remote from the people. Inhabitants, or passengers, or if the offender fled, these and the like are concurring evidence to give greater prob- ability to her testimony, when proved by others as well as her- self. But if she concealed the injury for any length of time after she had an opportunity to complain, if the place where the act was supposed to be done, when and where it is probablp that she might be heard by others, these and like circumstances carry a strong presumption that her testimony is false or feigned. Such is the care that the law uses in scrutinizing allegations of the crime of rape.^^^ §421. Robbery. — (1) The court instructs the jury, in the language of the statute, that robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation. Every person guilty of robbery shall be imprisoned in the penitentiary.^^ " Sutton V. People, 145 111. 279, 34 crime of robbery in that it omits the N. E. 420 (not misleading when con- felonious intent as a constituent ele- strued with other instructions). Jack- ment of the offense. This instruction son V. State, 132 Ga. 546, 64 S. E. 653. is in the exact language of the stat- "^With reference to this instruc- ute. The definition as contained in tion, the Supreme Court of Illinois the statute does not omit any essen- says: "Plaintiifs in error insist that tial element of the crime of robbery the giving of the first instruction as it existed at common law, and the was erroneous for the reason that it definition of the crime by the statute IS not a complete definition of the being complete, it was not error to § 421 INSTRUCTIOjSTS FORMS. 460 (2) The court instructs the jury, as a matter of law, that rob- bery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimida- tion. Every person guilty of robbery [in Illinois] shall be im- prisoned in the penitentiary not less than one year nor more than fourteen years ; or if he is armed with a dangerous weapon, with intent, if resisted, to kill or maim such person, or being so armed, he wounds or strikes him, or if he has any confederate present so armed to aid or abet him, he may be imprisoned for any term of years or for life.^^ (3) The court instructs the jury that concealment of the rob- bery does not amount to participation in it, but it is a circum- stance to be weighed with all others in determining the question of participation.^'' (4) The court instructs the jury that all persons who act together with a common intent in the commission of a crime are equally guilty. If you find and believe from the evidence beyond a reasonable doubt that at the city of and state of on or about the day of , , O. R., L. R., and J. D. did assault the prosecuting witness, E. D., by grasping and holding his arms and choking him, and by violence to his person, or by putting him in fear of some immediate injury to his person did take from his person, against his own will, $ , lawful money of the United States, or any part thereof, with the intent at the time to take wrongfully and carry away and convert the same fraudulently to their own use, and permanently deprive the owner thereof without his consent, and if you find that said prop- erty so taken belonged to said E. D., and was of any value what- ever, then you should find the defendant, J. D., guilty of robbery in the first degree, and assess his punishment at imprisonment in the penitentiary for such time as you may deem proper, not less than years. And, if you do not so find the facts, you will acquit the defendant.^^ (5) The court instructs the jury that the crime of robbery give this instruction in the language "Needham v. People, 98 111. 275. of the statute." People v. Scarbak, "State v. Dockery, 243 Mo. 592, 245 111. 435, 92 N. E. 286. 147 S. W. 976. "Needham v. People, 98 111. 275. 461 CRIMINAL LAW. § 422 may be committed by taking the money or property of another from his person or presence, forcibly and against his will, or by violence to his person, or by putting him in fear of some immedi- ate injury to his-person.^* §422. Seduction. — (1) The court instructs the jury that in prosecutions for seduction, the chastity of the prosecutrix is presumed, and the burden is upon the defendant if he would im- peach it, which he may do by proof of her acts of immorality or indecency, if any, or her general character before the seduction, if she was seduced ; likewise the defendant is presumed innocent of the charge against him, and this presumption of innocence goes with him through the trial, and protects him from a con- viction until his guilt is established from the evidence beyond a reasonable doubt.^° (2) The court instructs the jury that if you have a reasonable doubt of the chastity of the prosecuting witness at the time of the first intercourse with defendant, you will find the defendant not guilty.'" (3) The court instructs the jury that if any person by promise to marry shall seduce an unmarried female under the age of twenty-five years, in this state, and shall have carnal knowledge of such female, he would be guilty of the offense of seduction. The term "seduction" is used in the sense in which it is com- monly understood. It is the leading of an unmarried female un- der twenty-five years of age out of the path of virtue by a promise of marriage.''^ (4) The court instructs the jury that if you believe from the evidence that the defendant and D. T. were engaged to be mar- ried at the time of the act of carnal intercourse between them, if any, but that the said D. T. was not induced to have carnal in- tercourse with the defendant by reason of such engagement, if any, but that she submitted to him, if she did, relying upon the " State V. Hale, 156 Mo. 102, S6 S. " Oldham v. State, 99 Ark. 175, 137 W. 881. For similar instructions, S. W. 825. see State v. Ireland, 72 Kans. 265, 83 *" Oldham v. State, 99 Ark. 175, 137 Pac. 1036; State v. Miller, 93 Mo. S. W. 825. 263, 6 S. W. 57; McDow v. State, ^'Knight v. State, 64 Tex. Cr. 541, 113 Ga. 699, 39 S. E. 295. 144 S. W. 967. § 423 INSTRUCTIONS FORMS. 462 conditional promise that the defendant would marry her if any- thing happened, if any such promise was made, or if you have a, reasonable doubt as to this issue, you will acquit him.^^ (S) The court instructs the jury that if from the evidence you believe that defendant and L. R. did have carnal intercourse with each other, as charged, and that said female yielded to such in- tercourse on account of defendant's promise to marry her, yet if you believe from the evidence, or if you have a reasonable doubt as to whether or not prior to such alleged intercourse, she had had carnal intercourse with any other man or boy, or if you have a reasonable doubt as to whether or not said L. R. had had such intercourse with any other man or boy, you will acquit defend- ant.'' § 423. Setting out fires. — The court instructs the jury that if you find and believe from the evidence that the defendant set out fire to burn the leaves and grass on his own premises in order to protect his own property from forest fires, and used ordinary care to keep the fire from spreading to lan4 of others, and such fire escaped by accident to lands of another, defendant can not be held to have wilfully set fire to the woods within the meaning of section 5433, Revised Statutes of 1909, and can not be held liable for any damages caused by such fire.'* § 424. Theatrical performances vi^ithout license. — The court instructs the jury that if you believe from the evidence be- yond a reasonable doubt that the defendant on the day of , , in said county and state, said day being , was the agent or employe of the Company, a corporation, who was then and there the proprietor of a place of public amusement, to wit, a theater, and that said defendant as said agent or em- ploye did then and there unlawfully and wilfully open and per- mit to be open said theater for public amusement, and did then and there permit a theatrical performance to be given and ex- hibited in said theater for public amusement for admission to '' Browning v. State, 64 Tex. Cr. ="Belk v. Stewart, 160 Mo. App. 148, 142 S. W. 1. 706, 142 S. W. 485. "' Wooldridge v. State (Tex. Cr.), 146 S. W. SSO. 463 CRIMINAL LAW. § 424 which a fee was then and there charged, then you will find the defendant guilty. If you believe from the evidence or have a reasonable doubt thereof that the defendant was the agent or employe of said Company, then you will acquit the defend- ant. A theater is a playhouse ; a building for the representation of a theatrical performance. A theatrical performance is an ex- hibition given for the instruction or amusement of the audience, and may include tragedies, comedies, farces, and vaudeville per- formances. An agent is one who acts for another by authority from him. An employe is a person who is employed, one who works for wages or a salary. To permit means to grant permis- sion, to give leave, to grant express license or liberty to. In all criminal cases the burden of proof is on the state. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt ; and, in case you have a rea- sonable doubt as to the defendant's guilt, you will acquit him and say by your verdict, "Not guilty."^^ , "Gould V. State (Tex. Cr,), 146 S. W. 172. CHAPTER XLI. DAMAGES. Section 425. Nominal damages. 426. Actual or compensatory dam- ages. 427. Exemplary damages. 428. Not necessary that any witness testify as to the amount of the damages. 429. Duty to disregard sympathy in making award. 430. Mortality tables. 431. Mitigation and aggravation of damages. 432. Prospective damages. 433. Damages accruing after suit filed. 434. Injuries to personal property. 435. Injuries to real property. 436. Collapse of building. 437. Breach of contract. 438. Market value of property. Section 439. Personal injuries. 440. Personal injuries — Injuries to in- fants. 441. Personal injuries — Pain and suf- fering and other elements. 442. Personal injuries — Loss of earn- ing capacity. 443. Personal injuries — Loss of time and other elements. 444. Personal injuries — Permanency of injuries and other elements. 445. Personal injuries — Medical at- tendance and other elements. 446. Personal injuries — Disfigurement and other elements. 447. Personal injuries — Humiliation and other elements. 448. Personal injuries — Loss of wife's §425. Nominal damages. — (1) The court instructs the jury that if you find that defendant made such an agreement with plaintiff not to engage in the drug business at , as is men- tioned in paragraph of this charge, and you find that plain- tiff has suffered no actual damages, such as are defined in the preceding paragraph of this charge, then for the breach of said agreement you will find for plaintiff nominal damages, but which is meant some trifling, sum which is allowed for the breach of contract, and no serious loss is proven to have been sustained.^ (2) The court instructs the jury with reference to the second cause of action herein, in which the plaintiifs have claimed three * Crump V. Ligon, 37 Tex. Civ. App. 172, 84 S. W. 250. 464 465 DAMAGES. § 426 thousand five hundred dollars damages for erosions and washing away of the banks of the lands described in" the complaint, that the plaintiffs, in open court, announced that, owing to the fact that they were unable to establish by competent proof the amount of damages in dollars and cents therefor, and that because of the difficulties and impossibilities of determining the exact damages in dollars and cents, they have waived their right to recover anything but a nominal sum for such damages. And you are instructed that, as a matter of law upon the evidence in this case, the plaintiffs can recover of the defendant only nominal dam- ages, if any, for injury to their lands described in the complaint on account of erosions and the washing away of the banks of the plaintiffs' lands above the line of mean high tide. And by nom- inal damages is meant some small sum, such as one dollar." §426. Actual or compensatory damages. — (1) The court instructs the jury that actual damages are when the wrongful act has caused a loss or injury which can be assessed in money, the universal and cardinal principle being that the person injured shall receive compensation commensurate with his loss or injury and no more.^ (2) The court instructs the jury that if, under the instruc- tions and under the evidence submitted to you, you think the de- fendant is liable to the plaintiff, you should give him a verdict for such an amount as will fairly and honestly compensate him for the injury he has sustained.* (3) The court instructs the jury that if they should con- sider that the plaintiff was entitled to some damages under the evidence, their verdict must be limited to that amount of dam- ages which the evidence reasonably satisfies the jury the plain- tiff has sustained, and nothing can be added thereto, to reimburse the plaintiff for lawyer's fees or other costs of this lawsuit."* (4) The court instructs the jury that if you find the defend- ant guilty in this case, you have the right to give the plaintiff such an amount of damages as will compensate her for the in- ^Lownsdale v. Gray's Harbor * Seaboard Air Line R. Co. v. Boom Co., 36 Wash. 198, 78 Pac. 904. Bishop, 132 Ga. 37, 63 S. E. 785. ' Hutchison v. Summerville, 66 S. ° Meighan v. Birmingham Terminal Car. 442, 45 S. E. 8. Co., 165 Ala. 591, 51 So. 775. 30 — Branson's Inst. § 426 INSTRUCTIONS FORMS. 466 jury done as shown by the evidence in this case. Compensation to the plaintiff is the purpose in view, and, when that is accom- plished, anything beyond, by whatever name called, is unau- thorized. It is not the province of the jury after damages have been found for the plaintiff so that she is fully compensated for the injury to mulct the defendant in an additional sum to be handed over to the plaintiff as punishment for the alleged wrong.' (5) The court instructs the jury that if you find for the plain- tiff, then it will become your duty to assess the damages ; and in finding damages you should assess such amount as will fully compensate him for such injuries as he has proven.' (6) The court instructs the jury that if you find that the plaintiff is entitled to recover in this action, the amount of the recovery is for you to determine from all the facts in the case. Of course, you can not measure in dollars and cents the exact amount she is entitled to, but it is for you to say, in the exercise of a sound discretion, from all the facts in the case, after con- sidering and weighing all the facts in the case, without fear and without favor, and without passion and prejudice, what amount of money will reasonably compensate her for the damage and injury she has suffered. If you find for the plaintiff in this case under the instructions given by the court, and that the plaintiff has sustained damages as set forth in her petition, then to enable the jury to estimate the amount of damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof, and by con- sidering them in connection with their knowledge, observation, and experience in business affairs of life. If you find for the plaintiff, then, in assessing plaintiff's damages, if any damages alleged in her petition are proven, you have a right to take into consideration the nature, extent, and character of the injury "Totten V. Totten, 172 Mich. 56S, rington v. Eureka Hill Min. Co., 17 138 N. W. 257. Utah 300, S3 Pac. 111. For a similar ' "The use of the word 'fully,' instruction, see Sorensen v. J. I. Case v/hich is complained of, was unneces- Threshing Mach. Co., 129 Wis. 366, sary; but it meant no more than 109 N. W. 84. such damages as were proven." Har- 467 DAMAGES. § 427 sustained by her so far as the same is shown by the evidence, if any such are shown, pain and suffering undergone by her in consequence of such injury, if any such is shown by the evidence, and assess her damages at such sum as in your judgment will compensate the plaintiff for such injury, pain, and sufferirtg/ §427. Exemplary damages. — (1) The court instructs the jury that punitive or exemplary damages can not be proven in dollars and cents, but when the proof shows acts of malice and vexation the jury alone can fix in dollars and cents the measure of damages for malicious and vexatious acts, and they, the jury, can fix such punitive damages as may seem right to them, not exceeding the amount of the attachment bond.' (2) The court instructs the jury that if you find for plaintiff, you will assess his compensatory damages at such sum as will compensate plaintiff for his injuries and physical and mental suffering, if any, caused by said injuries, together with his loss of time, if any, occasioned by said injuries. And, if you find the injuries were wilfully inflicted, you may assess a further sum by way of punitive damages, and you may assess his punitive damages at such sum as in your judgment will be a warning to defendant not to commit similar acts.^" (3) The court instructs the jury that, if your finding is for the plaintiff, then in assessing his damages you are not limited to the physical injury inflicted (if any) by the said wrongful acts (if any) of said conductor, but, in addition thereto, if you find that the wrongful acts (if any) of said conductor were malicious (and by the term "malicious" is not meant spite or ill will, but the intentional doing of a wrongful act without just cause or ex- cuse), you may allow; such further damages, known in law as '"The instruction limited the jury see Merrell v. Dudley, 139 N. Car. to damages that were justified from 57, 51 S. E. W ; San Antonio &c. the facts of the case, and to such R. Co. v. Griffin, 20 Tex. Civ. App. damages as would reasonably com- 91, 48 S. W. 542. Damages, see pensate her. It did not permit a Merchant v. Pielke, 10 N. Dak. 48, verdict based merely on speculation." 84 N. W. 574; Connelly v. White, Muskogee Elec. Trac. Co. v. Mueller 122 Iowa 391, 98 N. W. 144. (Okla.), 134 Pac. 51. "Jennings v. Appleman, 159 Mo. 'Vandiver v. Waller, 143 Ala. 411, App. 12, 139 S. W. 817. 39 So. 136. For similar instructions. § 427 INSTRUCTIONS FORMS. 468 "punitive damages," as will be a punishment to defendant and a wholesome warning to others." (4) The court instructs the jury that if they believe from the evidence that the plaintiffs, relying upon the written publication of the 'defendant, did await on the wharf and at the usual place for the arrival of the mail-boat promised, and said boat did not come in; and that said publication was false and calculated to deceive and did deceive the plaintiffs, they may assess such dam- ages for such false publication and deceit as in their discretion they may consider the plaintiffs suffered by such falsehood and deception.^^ (5) The court instructs the jury that if they find, by a pre- ponderance of the evidence, that the defendant was actuated by a hatred or ill will toward the plaintiff, and that the assault, if any, was malicious, you may also award the plaintiff such dam- ages as, under the evidence, you think proper by way of pun- ishment to him for the assault. * * * "pj^g jury, however, are charged that the law is that exemplary or punitive damages should not be allowed or given in this case, unless you find, by a preponderance of the evidence, not only that the defendant, G., struck the plaintiff, B., but also that G. acted maliciously in so doing. The jury are also charged that, while angry and threat- ening words and abusive language are no justification for an as- sault and battery, still they may be considered by the jury in mitigation of damages, if it appears from the evidence that they were used, and were of such a character as would naturally tend to incite the angry passions of man, and were spoken so im- mediately before the assault complained of as that the heat of passion which they were calculated to incite had not had time to cool.^* (6) The court instructs the jury that punitive damages are awarded for the purpose of punishing the defendants for the wrongful act, and setting an example before the community, but "Mills V. Metropolitan St. R. Co., "Heirn v. McCaughan, 32 Miss. 157 Mo. App. 529, 137 S. W. 1006. 17, 66 Am. Dec. 588. See also, McNamara v. St. Louis "Bogue v. Gunderson, 30 S. Dak. Trans. Co., 182 Mo. 676, 81 S. W. 1, 137 N. W. 595. 880, 66 L. R. A. 486. 469 DAMAGES. § 427 are not allowed unless the evidence is sufficient to satisfy the jury that in doing the thing complained of the defendants were actuated by feelings of ill will or hatred toward the plaintiff or reckless disregard of the consequence of the act/* (7) The court instructs the jury that in an action for mali- cious prosecution, where the defendant has been guilty of op- pression, fraud or malice, actual or presumed, the jury, in addi- tion to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, not exceeding in all the amount claimed in the complaint.^^ (8) The court instructs the jury that in addition to this, they may assess against the defendant, by way of punitive damages or smart money, such an amount not to exceed $ , as they may believe from the evidence in this case ought to be paid by the de- fendant. Such damages are allowed and authorized under the law, not by way^ of compensation, but by way of punishment of the defendant for the doing wilfully of an unlawful and wrongful act.^^ (9) The court instructs the jury that (i)' there are cases in which the law allows a party to assess what are called "punitive damages" — damages intended to punish a defendant for an in- tentional, wilful, unlawful, and reckless wrongdoing. (2) And he must satisfy you by the preponderance of the testimony that the railroad company was guilty of such conduct as described, that the negligence was unlawful, reckless, wanton, etc., before you can find punitive damages. (3) That kind of negligence which would justify giving punitive damages is not simply careless- ness or heedlessness, but it implies the person has acted inten- tionally, has some evil purpose or reckless design, or utter dis- regard of the rights of others, has done what he intended to do to injure another person, or acted in such a way as would likely injure another person, regardless of his rights, implying an act of the mind — an intention to do so — not an intention to injure, "Gold V. S. Pian &c. Jewelry Co., Eggett v. Allen, 119 Wis. 625, 96 N. 165 Mo. App. 154, 145 S. W. 1174. W. 803; Connelly v. White, 122 Iowa ^ Martin v. Corscadden, 34 Mont. 391, 98 N. W. 144. 308, 86 Pac. 33. For similar instruc- "McMillen v. Elder, 160 Mo. App. tions on malicious prosecution, see 399, 140 S. W. 917. § 428 INSTRUCTIONS FORMS. 47O but to do an act which resuUed in injury. (4) But if he suc- ceeds still further in satisfying you that the railroad company's negligence was wilful, wanton, or reckless, then he would be en- titled to punitive damages.^^ (10) The court instructs the jury that the damages to the son may be ordinary compensatory damages, or if there be gross negligence, gross carelessness, or recklessness, or wanton dis- regard or malice, then go one step further: You may give him not only such damages as will compensate him, but give him smart money — punitive damages — ^to punish defendant.^' (11) The court instructs the jury that there must be wilful- ness, wantonness, recklessness, and utter disregard of the rights of the other person before the party that inflicted the injuries can suffer damages at the hands of a jury by way of punishment, to deter him and others in the future.^' § 428. Not necessary that any witness testify as to the amount of the damages. — (1) The court instructs the jury that if you find for the plaintiff upon the issues herein joined under the instructions of the court, then to enable the jury to esti- mate the amount of damages, it is not necessary that any witness should have expressed an opinion as to the amount of such dam- age, but the jury may themselves make such estimate from the facts and circumstances in proof.^'' (2) The court instructs the jury that if, from the evidence of the case and under the instructions of the court, the jury shall find the issue for the plaintiff and that the plaintiff has sustained damages as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof and by considering " Thomasson v. Southern R., 12 ^" "This instruction permitted the S. Car. 1, SI S. E. 443. jury to assess the damages from the " Mack V. South-Bound R. Co., 52 facts and circumstances in proof. S. Car. 323, 29 S. E. 90S, 40 L. R. A. That they had a right to do." Mus- 679. kogee Elec. Trac. Co. v. Mueller "Tucker v. Southern R. Co., 7S S. (Okla.), 134 Pac. 51. Car. 85, 55 S. E. 154. 471 DAMAGES. 8 431 them in connection with their knowledge, observation and ex- perience in the business affairs of hfe."'' § 429. Duty to disregard sympathy in making award. — The court instructs the jury that this is a case that confessedly appeals to our sympathies, and it is a deplorable case, as you prob- ably have heard me suggest. But, gentlemen of the jury, these are not considerations that may enter into our deliberations as jurors and judges in the trial of a lawsuit, no matter what our sympathy may lead us to think. Sympathy has no place in the trial of a lawsuit, and in making up your minds as to what your verdict shall be, gentlemen of the jury, do not permit that ele- ment to enter into your deliberations whatsoever. Do not per- mit your deliberations on the testimony in this case to be influenced in the slightest degree by the result or effect of your verdict. If this testimony in your opinion warrants a verdict, it is your duty to bring in a verdict as the testimony tells you to bring it in, regardless of what you may think the consequences of any verdict may be. 1 say that to you, gentlemen, because of the peculiar character of this case, which has appealed to me very much, and undoubtedly has appealed to all of you.^* § 430. Mortality tables. — The court instructs the jury that the mortality tables are offered in evidence to show the probable duration of the life, of a man of fifty-one years to be twenty years. This evidence is only to be considered by you in the event that you find that plaintiff was permanently injured by a fall which, he alleges, he received as a result of defendant's negli- gence. If you believe from the evidence that he can be cured by an operation, then you will disregard the evidence of the mor- tality tables.^' §431. Mitigation and aggravation of damages. — (1) The court instructs the jury that it is the duty of the person who "^ North Chicago St. R. Co. v. Fitz- 63 Fla. 223, 58 So. 369. Forms sug- gibbons, 180 111. 466, 54 N. E. 483. gested by the court for instructions "* Gornetzky v. Gornetzky, 174 Mich, as to the use of mortality tables, see 492, 137 N. W. 706. Florida Cent. &c. R. Co. v. Burriey, ''Louisville &c. R. Co. v. Croxton, 98 Ga. 1, 26 S. E. 730. § 431 INSTRUCTIONS FORMS. 472 has sustained personal injuries for which another is liable to se- cure timely medical or surgical aid, in order to reduce the liabil- ity of the party causing the injury. In selecting a physician, he is only charged to use ordinary care and judgment. If plaintiff used ordinary care and judgment in selecting a physician, con- sidering the circumstances of the case, the liability of defendant would not be changed, if you find the defendant is liable; nor would the amount of recovery be reduced, even though you should find the physician did not perform his work skilfully.^* {2). The court instructs the jury that plaintiff claims to have lost earnings from his business by reason of his injuries. It matters not what loss there has been, if any, in the earnings of plaintiff, unless that loss was directly caused by the necessary result of the injury received on . If plaintiff could have earned money by reasonable effort, and neglected so to do, he can not charge his loss, if any, to defendant.^' (3) The court instructs the jury that if you find for the plaintiff, and if you further find and believe that, after the plain- tiff's leg was injured, the plaintiff failed to use such care and means as an ordinarily prudent person would have used under the same or similar circumstances to have his leg properly treated, or in the medical treatment he received, or in going to work in too short a time after he received such injury, and there- by contributed to his injury, then you are instructed that if you so find you will not allow plaintiff anything on account of said aggravated or increased injury.^* (4) The court instructs the jury that, even when a servant has received an injury by reason of a failure on the part of the master to exercise reasonable care to furnish him with tools and appliances reasonably safe for use, it is his duty, under the law, to exercise reasonable care to prevent any aggravation of such injury. Therefore, if, after the servant has received such in- jury, he fails to exercise reasonable care for himself, and by reason thereof aggravates his own injury, and causes the same "Baldwin v. Lincoln County, 29 ''Ft. Worth &c. R. Co. v. Perry Wash. 509, 69 Pac. 1081. (Tex. Civ. App.), 147 S. W. 280. "" Feary v. Metropolitan St. R. Co., 162 Mo. 75, 62 S. W. 4S2. 473 DAMAGES. § 43 1 to be more serious in its results, he can not recover of the master any damages on account of the aggravation of his injuries caused by his own failure to exercise reasonable care. Thus, if a serv- ant should receive a cut in the foot by reason of failure on the part of the master to exercise reasonable care to furnish him with tools reasonably safe, and the servant should neglect to exercise reasonable care in the treatment of his foot, or carelessly ex- pose himself in such a way that the injury inflicted upon his foot should become aggravated, and blood poisoning set in, or gan- grene, that would necessitate amputation of his foot, such serv- ant could recover those damages only that he would sustain by reason of the cut on his foot, and could not recover any dam- ages from the master on account of afterward losing his foot.^* (5) The court instructs the jury that in arriving at the amount of his damages, you are to say, not only what they are, but whether the means used by the plaintiff to reduce the damages were such as an ordinarily prudent man would use. You can not say that he should or should not have obtained any particular kind of treatment. As to that, he must alone be the judge. But when he has determined what treatment to take, it will be for you to say if in making that determination he used the means that a reasonably prudent man would take to cure himself of his injury, or to reduce the extent thereof under the same circumstances. If you find that he did not, and you can say that some other treat- ment would have brought about a cure or reduced the amount of his damages, and that that treatment was one that a reasonably prudent man would have adopted, then you must say that he has not used the care which a reasonably prudent man would use to reduce the damages, and you must take that into consideration "* "Under the facts proved, the is- cable to the facts proved, and was sue was clearly presented as to properly given. The court, in such whether or not the spell of sickness charge, did not give undue promi- which appellant had after the injury nence to the theory of the defendant, was brought on by the injury itself, but clearly presented the law of the or whether it was produced by his case." Throckmorton v. Missouri own imprudence. In such a case the &c. R. Co., 14 Tex. Cr. 222, 39 S. W. charge of the court was clearly appli- 174. 8 432 INSTRUCTIONS FORMS. 474 in arriving at your verdict, and you fix the standard as to what a reasonably prudent man would do under such circumstances.^" (6) The court instructs the jury that you should take into consideration both in the determination of your verdict and in estimating the amount of the plaintiff's damages any predisposi- tion to disease aggravated by the injury if such appears to be the fact."" (7) The court instructs the jury that it was the duty of the plaintiff to use ordinary care, judgment and diligence in securing medical or surgical aid after she received the injuries complained of, if any she received, and if you find from the evidence that after she received such injuries, if any she did receive, she failed to use such ordinary care, judgment and diligence in pro- curing timely medical or surgical aid; and if you further find from the evidence that, by reason of such failure, her con- dition is now different and worse than it would have been if she had used such ordinary care, judgment and diligence in the premises, then, if you find for the plaintiff, you should take this into account in making up your verdict and should not allow her any damages for ailments and disease, if any, that may have resulted from such failure.^^^ §432. Prospective damages. — (1) The court instructs the jury that, if you find for the plaintiff, it becomes your duty to assess his damages at such sum as the evidence relating thereto shows him to be entitled to, not exceeding the sum of dol- lars [the amount laid in the ad damnum]. The elements of damages you are entitled to take into consideration consist of all the effects of the injury complained of, if any, as shown by the evidence relating thereto. ^^ (2) The court instructs the jury that where the plaintiff has been injured by the negligent conduct of the defendant he is en- titled to recover damages for past and prospective loss resulting " Rowe V. Whatcom County R. &c. '' It was held that this instruction Co., 44 Wash. 658, 87 Pac. 921. did not assume the truth of facts in ''Denver v. Hyatt, 28 Colo. 129, issue or that certain facts had been 63 Pac. 403. established. I. F. Force Handle Co. "a Louisville &c. R. Co. v. Falvey, v. Hisey (Ind. App.), 96 N. E. 643. 104 Ind. 409, 3 N. E. 389. 475 DAMAGES. 8 432 from defendant's wrongful and negligent acts, and these may embrace indemnity for actual expenses incurred in nursing and medical attention, loss of time, loss from inability to perform mental or physical labor, or of capacity to earn money, and for actual suffering of body or mind which are the immediate and necessary consequences of the injuries, but, in this case, as the plaintiff has not introduced evidence to show what he paid for nursing and medical attention or what his services for loss of time were worth, you will only consider such damages, if any, as he is entitled to recover for actual suffering of body and mind which are the immediate and necessary consequences of injuries sustained if you find by the greater weight of the evidence he was injured by the negligent conduct of the defendant.^^ (3) The court instructs the jury that if, under the evidence and instructions of the court, the jury find the defendant guilty, as charged in the plaintiff's declaration, then, in estimating the plaintiff's damages, it will be proper for the jury to consider the effect of the injury in future upon the plaintiff, the use of his leg and his ability to attend to his affairs generally in pur- suing any ordinary trade or calling, if the evidence shows that these will be affected in the future, and also the bodily pain and suffering he sustained, and all damages, present and future, which from the evidence appear to be the necessary and direct result of the injury complained of.^* (4) The court instructs the jury that if you find that she is still suffering pain, she is entitled to be compensated for the pain and suffering which she will endure in the future. As I have told you in other cases, and I call your attention to it again, we have no rule by which you may calculate that amount. I can give you very little instruction as to how you may arrive at that amount. The law leaves it to your sound judgment as to what °'Ruffin V. Atlantic &c. R. Co., 142 describing it in all seriousness. N. Car. 120, 55 S. E. 86. Further, the instruction can not be ^It was held that the instruction complained of on the ground that it was correct and that the absence of leaves the jury to find damages for an averment, in the declaration, or the probable effect of the injury in permanent injury was immaterial. It the future. North Chicago City R. was sufficient that the declaration Co. v. Gastka, 27 111. App. 518, affd. showed the injury sustained, without 128 111. 613. § 433 INSTRUCTIONS FORMS. 476 she ought to receive in money, because the law only knows to compensate in money. What ought she to receive in money for the pain and suffering which she has endured, or will endure in the future?*^ ( 5 ) The court instructs the jury that in estimating the plain- tiff's damages, if the jury find for the plaintiff, it is proper for the jury to estimate the effect of the injury in the future upon plaintiff's physical condition, if any, as well as the effect it has had upon him already, and the bodily pain and suffering and the mental suffering, past, present, and future, endured by him as the result of the injuries received by him, and all necessary ex- penses and damages, present and future, which can be treated as a necessary result of the injuries, if any, inflicted upon plaintiff by the defendant.^" § 433. Damages accruing after suit filed. — The court in- structs the jury that if you believe there has been a loss, as the plaintiff contends for, in his business, on account of loss of cus- tomers, on account of his having to come to market, and the amount is shown you with sufficient certainty, under the instruc- tions already given, you may consider that from the date of the alleged wrong up to this date, the time of this trial.*' § 434. Injuries to personal property. — ( 1 ) The court in- structs the jury that if you should find for the plaintiffs you may consider whether the plaintiffs were for any period of time de- prived of the use of said horse and cab by reason of any injury sustained to said horse and cab in said collision, and the rea- sonable value for the use of said cab and horse during said period of time, all as shown by the evidence in the cause.*' (2) The court instructs the jury that the measure of dam- ages is what is the market value of those. goods at the time they were lost. You look to the evidence in the case. The court al- lowed the evidence of what the value was when bought; but that ^ Samarra v. Allegheny &c. R. Co., in which the defendant defaulted. 238 Pa. St. 469, 86 Atl. 287. Southern Bell Tel. &c. Co. v. Earle, "Louisville &c. R. Co. v. Croxton, 118 Ga. 506, 45 S. E. 319. 63 Fla. 223, 58 So. 369. '' Horace F. Wood Transf. Co. v. "This was an instruction in a case Shelton (Ind.), 101 N. E. 718. 477 DAMAGES. § 435 is not the measure of damages. The court only allowed that so as to enable you to see if that would enable you, or rather assist you, in determining what they were worth when they were lost, and in passing upon that you are to take into consideration how long they were in the possession of the plaintiff, the wear and tear that would come to them, and all the facts and circum- stances which surround it, in passing upon the value of those articles. And then, after you do that, try to reach an honest, fair valuation of it and give to the plaintiff such damages, such valuation to those goods, as you think under the evidence she is entitled to recover.^* §435. Injuries to real property. — (1) The court instructs the jury that plaintiff's damage, if any, is the permanent damage done to his lot as the net proximate result of the defendant's ob- struction complained of, viewed in connection with the depot im- provements of defendant, of which that structure is an incident.*" (2) The court instructs the jury that if you believe from the evidence that the plaintiff's property has been improved more than it has been damaged by the defendant's work complained of, when considered in connection with the whole improvement, you should find for the defendant." (3) The court instructs the jury if you believe from the evi- dence that the horses and cattle under control of the plaintiff, and being pastured upon his premises, went upon the defend- ant's ditch and tramped down the borders and caused the break, whereby plaintiff's premises were flooded and damaged, or if you believe from the evidence that the break was caused by the direct agency of the plaintiff in any way, whereby his premises were flooded and damaged, he can not recover in this case and you should find for the defendant.*^ (4) The court instructs the jury that the rule for the meas- ure of damages, if there is a right of recovery, is the difference, if any, between the fair market value of the land burned over, ''Atlanta Baggage &c. Co. v. Mizo, " Meighan v. Birminghan Terminal 4 Ga. App. 407, 61 S. E. 844. Co., 165 Ala. 591, 51 So. 775. " Meighan v. Birmingham Terminal " Billups v. Utah Canal Co., 7 Co., 165 Ala. 591, 51 So. 775. Ariz. 211, 63 Pac. 713. § 435 INSTRUCTIONS FORMS. 478 belonging to the plaintiff, immediately before the fire, and its fair market value immediately afterward.^' (5) The court instructs the jury that the evidence fails to show that the building in question was in any manner damaged by the plaintiff after the day of , in the year , the date at which defendant took possession of the same. You will therefore not consider any matter in relation to the damage to the floor of said building or the ashes and trash in the cellar thereof.''* (6) The court instructs the jury that the difference in the value of the premises before the fire, including the timber thereon, and its value after the fire in the condition that it then was, would be the damages, if any, sustained by the plaintifif in this case. In other words — and I want to be sure that I make my- self plain in this regard — in determining plaintiff's damages, if any, you will compare the actual value of plaintiff's land with the trees and timber thereon just before the fire and before the trees were burned with the actual value of the same premises after the fire and after the trees were burned. The difference in value will be the amount that plaintiff is entitled to recover in this action, if anything. Considerable evidence has been introduced during the trial of this case with reference to the condition of the tracts of land involved, the condition of the timber, and the value of the particular kinds of timber on these tracts. This evidence was admitted as tending to aid you in reaching a con- clusion upon the question as I have stated it to you, upon the question of the condition and value of the tracts before the fire and the condition and value of the tracts after the fire, and you will take into consideration all of the evidence in the case in reaching a conclusion in this regard.^^ "^ "When a plaintiff proves that the the legal effect of circumstances defendant has negligently injured his which the defendant does not claim property by fire — a sufficient cause for existed." Chicago &c. R. Co. v. depreciation in value,— and when the Brown, 157 Ind. S44, 60 N. E. 346. defendant contests the extent of the "Horn v. Stoner, 146 Iowa 342, depreciation, without suggesting that 125 N. W. 169. there was any other cause, the trial " "This instruction states, we think, court should not be criticized for the true measure of damages which treating the case as the parties treated obtains where standing forest trees ir, or for failing to state to the jury are destroyed or injured by fire." 479 DAMAGES. § 436 (7) The court instructs the jury that if you find for the plain- tiff, the measure of his damages will be as follows : As to the dwelling-house in which plaintiff was residing at the time of the fire; the measure of his damages will be the reasonable cash value of said dwelling at the time of its destruction; as to the other property contained in the itemized statement attached to the peti- tion, the measure of his damages will be the reasonable value of said goods at the time of their destruction, if they were de- stroyed. *° (8) The court instructs the jury that any interference with the drainage of the plaintiff's lands, or the flow of surface water, which could not be prevented by the proper and skilful con- struction of defendant company's road with proper and skilfully constructed culverts, was proper to be taken into consideration by the plaintiff, when the defendant company purchased its right of way from the plaintiff; and if the jury believe from the evi- dence that the railroad through plaintiff's land was properly and skilfully constructed, with properly and skilfully constructed cul- verts, in proper numbers, and that the same have been kept in proper order, then they can not assess any damages against the said defendant company on account of ponds or of accumulations of water, though caused by the building and construction of said road." (9) The court instructs the jury that if you find the defend- ant company committed a wilful and wanton act on the land of plaintiff, and thereby damaged it, you would be justified in giv- ing damages according to your judgment of the facts. If you find actual damages also, you can give damages for that. If you find otherwise, if you find that the defendant did not do that, it would not be responsible.*'- § 436. Collapse of building. — The court instructs the jury that if you find for the plaintiff damages in this case, the meas- Reynolds v. Great Northern R. Co., " Norfolk &c. R. Co. v. Carter, 91 119 Minn. 251, 138 N. W. 30. Va. S87, 22 S. E. 517. " Missouri &c. R. Co. v. Murray "^ Burnett v. Postal Tel. Cable Co., (Tex. Civ. App.), 150 S. W. 217. 71 S. Car. 146, 50 S. E. 780. § 437 INSTRUCTIONS FORMS. 480 ure of damages would be the reasonable cost of replacing said building as it was before the same fell down/* §437. Breach of contract. — (1) The court instructs the jury that if you find from the evidence in this case that the plaintiff is entitled to recover from the defendant railroad com- pany, you will fix the amount of the present value of said house at the time of the fire. Compensatory damages only may be given. The then present value of said house is the amount in cash it was reasonably worth in the market at that time and at that place. Not necessarily what a new house would cost to erect, but, taking into consideration the evidence which has been detailed to you regarding the fair cash value of said house, its condition, age, and situation, what was its fair cash market value at that time. Then, if you find that the plaintiff is entitled to recover, he is entitled to recover such fair cash market value, to which the jury may in their discretion allow interest at the legal rate of per cent, per annum, and out of the sum which plaintiff recovers, provided he does recover, the defendant insurance com- pany is entitled to be allowed the amount which it has paid by reason of its insurance policy thereon, if it tecovers at all, to which you may allow interest in your discretion as above stated.*' (2) The court instructs the jury that another one of the pro- visions of said contract was to the effect that contemplated build- ing as first designed in accordance with the proposed plans and specifications should not exceed the sura of $ , but it ap- pears from the evidence that there were certain subsequent changes and modifications of the original sketch or design, in- curring additional expense agreed to by the parties, and in regard thereto you are instructed that to the limit of cost of the pro- posed building, as first designed, should be added the cost of the changes and modifications which the parties agreed to, and if you find that the proposed building could not be built for $ and what you find would be the reasonable costs of all additions and changes from the original design added thereto, then there ^'Fraternal Const. Co. v. Jackson *°New York &c. Co. v. Roper, 176 &c. Mach. Co., 28 Ky. L. 383, 89 S. W. Ind. 497, 96 N. E. 468. •265. 481 DAMAGES. § 439 would be a failure to comply with the contract on the part of plaintiff, and your verdict should be for the defendant.^" (3) The court instructs the jury that for the breach of an ob- ligation, not arising from contract, the measure of damages is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.^^ (4) The court instructs the jury that if the plaintiff pur- chased a ticket from the railroad company and made a contract with them to transport him on that day, and the company failed to do it, a part of his actual damage would be the price he paid for the ticket." § 438. Market value of property. — (1) The court instructs the jury that the opinions of witnesses as to the market value of property should be weighed by the jury in the light of other evi- dence, and the opportunity of the witnesses to know such value, and the reasonableness or unreasonableness of their estimate of such value. The jury are not bound to take any man's opinion of such value, but may act on their own judgment and good sense in arriving at a just value, in the light of the whole evidence.^^ (2) The court instructs the jury that if you find a verdict for plaintiff, then you are instructed that the measure of dam- ages would be the market value at the time and place of the al- leged injury to the lucerne seed, if any, which you may find, by a preponderance of the evidence, was eaten, injured, or de- stroyed by cattle owned by or in possession of said defendants, or with which the defendants were charged with the care at the time of the alleged trespass.^* § 439. Personal injuries. — The court instructs the jury that in assessing damages you may consider, if you find it to be a fact, that the plaintiff will be deprived of the pleasure and sat- ™ Bowell V. Draper, 149 Iowa 725, "' Meighan v. Birmingham Terminal 129 N. W. 54. Co., 165 Ala. 591, 51 So. 775. "Rand v. Butte Elec. R. Co., 40 "Peterson v. Petterson (Utah.), Mont. 398, 107 Pac. 87. 130 Pac. 241. "Caldwell v. Atlantic Coast Line R. Co., 75 S. Car. 74, 55 S. E. 131. 31 — Branson's Inst. § 440 INSTRUCTIONS FORMS. 482 isfaction in life that those only can enjoy who are possessed of a sound body and the free use of all of its members.'^'' §440. Personal injuries — Injuries to infants. — (1) The court instructs the jury that if you find for the plaintiff you will assess his damages at such a sum of money as in your opinion will be a reasonable and just compensation for the injuries he has sustained. In estimating the damages, you will take into con- sideration the physical and mental pain, if any, he has sustained by reason of such injuries, if any; and if you believe from the evidence that plaintiff has not yet recovered, and that his in- juries are permanent, and that he will hereafter suffer pain and anguish therefrom, and that his ability to labor and earn money subsequent to his majority is and will be impaired by reason of said injuries, if any, then you will take this into consideration in estimating the damages; but you will exclude from your con- sideration any loss or impairment of earning power, if any, dur- ing his minority.^* (2) The court instructs the jury that in estimating her dam- ages, you will take into consideration the proof, if any, show- ing the mental pain and suffering sustained by her by reason of her injuries; any pain or suffering she may sustain in the fu- ture resulting from such injuries, if any; the probable effect of the injuries in the future upon her health; and also any reduc- tion of her power and capacity to earn money, if any, in the fu- ture, or to pursue the course of life she might, but for her in- juries, after she arrives at the age of majority. "^^ (3) The court instructs the jury that, if they believe from the evidence that the defendant company is liable in this action, then in estimating said damages, they should take into considera- tion the bodily injury, if any, sustained by the plaintiff, the pain and suffering undergone, the effects on the health of the suf- ferer, according to its degree, and its probable duration as being "' Pittsburg &c. R. Co. v. Cozatt, son, 34 Tex. Civ. App. 105, 78 S. W. 39 Ind. App. 682, 79 N. E. 534. Sim- 8. See Dublin Cotton Oil Co. v. Jar- ilar instructions, see American Straw- rard (Tex. Civ. App.), 40 S. W. 531. board Co. v. Foust, 12 Ind. App. 421, " Dublin Cotton Oil Co. v. Jarrard 39 N. E, 891. (Tex. Civ. App.), 40 S. W. 531. ""Cameron Mill &c. Co. v. Ander- 483 DAMAGES. § 441 temporary or permanent, and the pecuniary loss sustained by the plaintiff through his inability to attend to his business affairs after his arrival at the age of twenty-one years.^^ (4) The court instructs the jury that neither physical or men- tal suffering of the boy, nor the mental anguish of the mother, in consequence of the accident, if any, are items or elements of damage to be considered by you, and the value of the boy's serv- ices during the period of his minority, if you should find for plaintiff, is to be ascertained by you as best you can, from your own judgment, common sense, and sound discretion, and the evidence before you.^* § 441. Personal injuries — Pain and suffering and other elements. — (1) The court instructs the jury that if you find for the plaintiff, in assessing her damages you will take into con- sideration her age and condition in life, the injuries sustained by her and the physical and mental pain and anguish endured by her on account of the injury, if any, together with such as she will necessarily endure in the future, resulting from her injury, if any, together with all other facts and circumstances in the case, and assess her damages at such sum as you believe from the evi- dence will fully compensate her for the injuries.*^ (2) The court instructs the jury that if you find the defend- ant guilty the plaintiff will be entitled to recover for pain and anguish, if any, which she has suffered or will hereafter suffer, so far as the same are shown by the evidence to be the direct result of the injury.*^ (3) The court instructs the jury that in determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should, take into con- sideration all the facts and circumstances in evidence before them; the nature and extent of the plaintiff's physical injuries, ■^ Richmond Trac. Co. v. Wilkin- ture. That fact was left for the jury son, 101 Va. 394, 43 S. E. 622. to determine under the evidence. St. "' El Paso Elec. R. Co. v. Kitt Louis &c. R. Co. v. Wright, 105 Ark. (Tex. Civ. App.), 90 S. W. 678. 269, ISO S. W. 706. "'The instruction was held not ob- "^Evanston v. Richards, 224 111. jectionable as assuming that the 444, 79 N. E. 673. plaintiff would suffer pain in the fu- § 441 INSTRUCTIONS FORMS. 484 if any, testified about by the witnesses in this case; her suffering in body and mind, if any, resulting from such injuries, and also such prospective suffering and loss of health, if any, as the jury may believe, from all the evidence before them in this case, she has sustained or will sustain by reason of such injuries.** (4) The court instructs the jury that if they find for the plain- tiff, they should assess the plaintiff's damages; and in assessing his damages the plaintiff will be entitled to recover for any pain and anguish which he has suffered or will hereafter suffer in consequence of said injury, for any and all damages to his per- son, permanent or otherwise, occasioned by said injury, and, generally, the plaintiff will, if the jury find the defendant guilty, be entitled to recover all damages alleged in the declaration which they may believe, from the evidence, he has sustained by reason of said injury."* (5) The court instructs the jury that the plaintiff is also en- titled to compensation for all the pain and suffering which she has endured since the time of the accident, and that she is likely to endure in the future. In considering this question, you have a right to consider her age. At the time of the injury, she was thirty-six years of age, and, in accordance with the mortality tables of the state of Michigan, she has an expectancy of life of thirty-one years and upward. In computing the amount which she would earn during that period, it is your duty to give her the present worth or value of what she would earn. I might add that, in computing the damages that a person is entitled to for pain and suffering, the law has no standard by which to go. It is left to the sound judgment and discretion of the jury. It is not an arbitrary power left to the jury, to be exercised arbi- trarily. You have no right to award anything in the nature of punishment. You must try and make the person injured through the negligence of the defendant whole, so far as money con- "^ Where negligence occasions in- mating damages. Hannibal &c. R. Co. juries producing mental or physical v. Martin, 111 111. 219. suffering, such element may be taken " Chicago City R. Co. v. Allen, 169 into consideration by the jury in esti- 111. 287, 48 N. E. 414. 485 DAMAGES. § 442 sideration can do so, but you should give nothing further than compensation."^ (6) The court instructs the jury that the plaintiff is also en- titled to compensation for the pain she may suffer from an op- eration, if an operation is deemed necessary."" (7) The court instructs the jury that, if they find the issues for the plaintiff, they will assess her damages at such sum as they believe from all the evidence virill compensate her for the pain and anguish in mind and body they may believe from the evidence she has suffered, if any, together with such sum as will compensate her for any permanent injury to her spine, right side, and right arm, leg, and foot they may believe from all the evi- dence she has sustained, if any, by the reason of the injury in question, not to exceed in all the sum of dollars."^ (8) The court instructs the jury that if you find for the plain- tiff, you will, in assessing her damages, take into consideration her age and condition, the physical injuries inflicted, if any, the bodily pain and mental anguish suffered, if any, and any and all such damages of the kind and character mentioned which will in the future reasonably result to her from said injuries, not to exceed, in all, the sum of ten thousand dollars."* (9) Jhe court instructs the jury that if you find for plaintiff, you will assess his damage at such sum as you believe from the evidence will afford him a just and reasonable pecuniary compen- sation for the injury he has sustained, if any, taking into con- sideration, in fixing the amount, the physical pain he has suf- fered, if any, on account of his injury, and his diminished ca- pacity to labor and earn money, if you find that his capacity so to do has been diminished by reason of such injury."'' § 442. Personal injuries — Loss of earning capacity. — ( 1 ) The court instructs the jury that the plaintiff would also be en- '° Instruction not misleading, see "'Eichorn v. Missouri &c. R. Co., Beattie v. Detroit, 137 Mich. 319, 100 180 Mo. 575, 32 S. W. 993. N. W. 574. «= Wright V. Kansas City, 187 Mo. ™ Beattie v. Detroit, 137 Mich. 319, 678, 86 S. W. 452. 100 N. W. 574. '"Missouri &c. R. Co. v. Gist, 31 Tex. Civ. App. 662, li S, W. 857. § 442 INSTRUCTIONS FORMS. 486 titled to recover for his decreased capacity to work, if you find from the evidence that the injury received is permanent.'" (2) The court instructs the jury that if you find the defend- ant guilty, then, in estimating the plaintiff's damages, it is proper for the jury to consider the effect, if any, of the injury upon the plaintiff's health and ability to labor, and all such injuries, if any, as the jury may believe, from the preponderance of the evi- dence, naturally and proximately result therefrom to the plain- tiff, as v/ell as bodily pain and suffering endured by him, if any, and having considered these elements, if proven, fix the plain- tiff's damages at such sum as the jury may believe, from the evi- dence, is necessary adequately and justly to compensate the plain- tiff for the damages, if any, which the jury believe, from the evidence, are the direct, natural "and proximate result of the in- jury. In the assessment the jury must take into consideration only such elements of damage as have been alleged in the declara- tion and which have been established by a preponderance of the evidence.'^ (3) The court instructs the jury that if you find for the plain- tiff, you will be required to determine the amount of his dam- ages. In determining the amount of damages the plaintiff is en- titled to recover in this case, if any, the jury have a right to and they should take into consideration all the facts and circum- stances as proven by the evidence before them; the nature and extent of the plaintiff's physical injuries, if any, so far as the same are shown by the evidence; his sufferings in body, if any, resulting from such physical injuries as the jury may believe, from the evidence before them in this case, he has sustained by reason of such injuries; his loss of time and inability to work, if any, on account of such injuries; all moneys he necessarily expended or became liable for, for doctors' bills, if any, while being treated for such injuries; and you may find for him such sums as in the judgment of the jury, tinder the evidence and in- structions of the court in this case, will be a fair compensation for "Augusta V. Owens, 111 Ga. 464, 36 Durham Trac. Co., 138 N. Car. 11, S. E. 830. Similar instructions, see SO S. E. 518, 107 Am. St. S26. Wimber v. Iowa Cent. R. Co., 114 "American Car &c. Co. v. HilL Iowa SSI, 87 N. W. SOS; Clark v. 226 111. 227, 80 N. E. 784. 487 DAMAGES. § 442 the injuries he has sustained or will sustain, if any, so far as such damages or injuries, if any, are claimed and alleged in the dec- laration.'^ (4) The court instructs the jury that if you find for the plain- tiff in this case, it will be your duty to award him such damages as will fairly and reasonably compensate him for the injuries re- ceived, if any, which he has sustained. In determining the amount of damages, if any, to which plaintiff would be entitled, as flowing proximately from the accident complained of, it is your duty to take into consideration his age, and his condition in life, the physical pain and mental anguish, if any, which he suffered, the question whether his injuries are temporary or permanent which he is afflicted with, any deformity, or bears any marks or scars, as the result of the explosion; whether his earning capacity has been reduced, and what effect, if any, his injuries will have on his earning capacity in the future; what moneys, if any, he may have been compelled to lay out in medical treat- ment, medicine and nursing; what wages, if any, he has lost by reason of his injuries, and, in short, award him such an amount, if he is entitled to recover, as will reasonably and fairly compen- sate him for the injuries and damages, if any, which he has sus- tained.'^ (5) The court instructs the jury that some evidence has been introduced tending to show the amount of the earnings of the plaintiff before and after his injury, as derived from the prose- cution of his business of buying and selling hogs and cattle. This evidence should not be regarded by you as establishing a measure or rule for the ascertainment of damages that may be awarded to the plaintiff for his loss of time, and because of his impaired ability to labor and earn money and to manage and pur- sue his business in the future, but is submitted to you as tending to show the decrease, if any, of his capacity to work and earn money and pursue his employment; and if you find from the evidence that, by reason of the injuries sustained by the plaintiff, his ability to labor and earn money and manage and pursue his business has been lessened and impaired, and that it is reasonably "Donk Bros. Coal &c. Co. v. Thil, "Vandalia Coal Co. v. Yemm, 175 228 III. 233, 81 N. E. 857! Ind. 524, 92 N. E. 49. § 442 INSTRUCTIONS FORMS. 488 certain that such lessened and impaired abihty will continue in the future, then you should allow him such reasonable sum as is shown by the evidence will reasonably compensate him for such lessened and impaired ability to labor and earn money and man- age and pursue his business in the future. And in ascertaining and fixing such compensation, in so far as the management and pursuit of the business of the plaintiff is concerned, your inquiry should be directed to the value of the personal services of the plaintiff in the management and pursuit of his business.'* (6) The court instructs the jury that if they find for the plain- tiff, the measure of damages is a fair and just compensation for any mental and bodily pain he suffered as a direct result of his in- jury, if any, and any permanent reduction of his power to earn money as the direct result of the injury, if any, and if the jury believe from the evidence the injury, if any, was caused by the gross negligence of the defendant, they may also award the plaintiff such sum in punitive damages as they deem proper, not exceeding in all, however, the sum of dollars, the amount claimed in the petition.'' (7) The court instructs the jury to find for the plaintiff such a sum in damages as you believe from the evidence will reasonably and fairly compensate her for any mental suffering and physical pain, if any, caused by the injuries inflicted on her by being struck by defendant's car; and if you believe from the evidence that said injury is permanent, you will find for her for any per- manent impairment of her power to earn money; and you may further find punitive damages in such an amount»as you believe to be just and reasonable under the facts and circumstances proved in this case, your whole finding not to exceed $ , unless you believe from the evidence that the plaintiff was guilty of contributory negligence as set forth in the next instruction, in which event, you will find for the defendant.'® (8) The court instructs the jury that if her injuries were such as would preclude her earning anything in the future, or would "Jordan v. Cedar Rapids &c. R. "Cincinnati &c. R. Co. v. Acker- Co., 124 Iowa 177, 99 N. W. 693. man, 148 Ky. 435, 146 S. W. 1113. " Chesapeake &c. R. Co. v. Conley, 136 Ky. 601, 124 S. W. 861. 489 DAMAGES. § 442 preclude her working in any capacity — acting as a housewife — of course, that is a matter for you to take into consideration. I do not mean to say that if she were to be married it would be ex- pected that she would earn by working in a store, as she has in the past ; still she might be physically unable to do housework. It is quite possible, gentlemen of the jury, that the injuries are such, and you may find them to be such — because the extent of the in- juries is wholly for you, and not for me — ^as to preclude her from being married for perhaps some time.'^ (9) The court instructs the jury that, if you find for the plaintifif, you should allow her damages at such a sum, not ex- ceeding dollars, as you believe from the evidence will be a fair and reasonable compensation to her, first, for whatever pain of body or mind she has suffered by reason of her said injuries and that she will hereafter suffer, if you find from the evidence she has suffered or will suffer any ; second, for the loss of wages heretofore occasioned by said injuries and shown by the evidence, and any loss of her earnings you may find from the evidence, if any, she will hereafter suffer by reason of said in- juries ; and third, for any reasonable and necessary expense that you may find from the evidence she has or may hereafter incur for medical treatment on account of her said injuries.'* (10) The court instructs the jury that if they find for plain- tiff, they should assess her damages at such sum as they may be- lieve from the evidence will be a fair compensation to her : First, for any pain of body or mind which the jury may believe from the evidence she has suffered or will hereafter suffer by reason of her injuries and directly caused thereby. Second, for any loss of the earnings of her labor which the jury may believe from the evidence she has sustained or will hereafter sustain by reason of her injuries and directly caused thereby. Third, for any expenses necessarily incurred for medicines, medical or surgical attention or nursing which the jury may believe from the evidence the plaintiff has incurred by reason of her injuries and directly caused . thereby.'* "Remey v. Detroit United R. Co., "Flaherty v. St. Louis Trans. Co., 141 Mich. 116, 104 N. W. 420. 207 Mo. 318, 106 S. W. 15. " Stoebier v. St. Louis Trans. Co., 203 Mo. 702, 102 S. W. 651. 8 442 INSTRUCTIONS FORMS. 49O (11) The court instructs the jury that i£ you believe from the evidence that at the time the plaintiff received the injuries here sued for, he was receiving under a contract with A. the sum of • dollars per year for services rendered by him, the court can not say that the fact that plaintiff received this sum determines that that amount is the amount of the earning power of plaintiff under the law. In determining the question of the earning power of plaintiff, you must take into consideration the circumstances under which the plaintiff was receiving at this time this sum of dollars. The fact that plaintiff had accepted the sum of dollars per year for his services is persuasive, though not conclusive evidence that the price was considered by him a fair one."" (12) The court instructs the jury that if the jury find for the plaintiff, they may allow him for expenses which have been actually paid or such as are reasonably necessary to be in- curred ; also damages for the pain and suffering plaintiff has un- dergone in the past and is likely to undergo in the future, and for permanent injury which the jury may deem plaintiff has suffered and will suffer in the future; and also the loss of earning power up to the present time and in the future consequent upon the in- jury sustained by the negligence of the company.*^ (13) The court instructs the jury that if you find for plaintiff, you will find for plaintiff such damages as will reasonably com- pensate him for injuries received, if any. You will estimate such injuries, if any, thus far sustained, any loss by impairment or capacity to earn wages, any pain, or suffering, or mental an- guish, if any, and, if his injuries are permanent, you will find such further damages, which, if paid now, will compensate him for any future injuries, if any.*^ (14) The court instructs the jury that in estimating his dam- ages, if any, you should take into consideration the mental and physical pain suffered, if any, consequent upon his injuries, if any; and if you believe, from the evidence, that his injuries, if *'McKenna v. Citizens' Natural '"Galveston &c. R. Co. v. Fink, 44" Gas Co., 201 Pa. 146, SO Atl. 922. ^ Tex. Civ. App. 544, 99 S. W. 204. "Benson v. Altoona &c. Elec. R.' Co., 228 Pa. 290, 11 Atl. 492. 491 DAMAGES. § 442 any, are permanent, and will diminish his capacity to earn money in the future, then you should allow him such a sum therefor as you believe from the evidence he is entitled to/" (15) The court instructs the jury that, in case you should find a verdict for the plaintiff, you would assess his damages at such a sum as in your judgment would reasonably compensate the plaintiff for physical pain, if any, suffered by him and the diminu- tion, if any, of his earning capacity from the time of the filing of this suit, and as long as such diminution, if any, shall exist, that were the direct and proximate result of the negligence, if any, of the said defendant.** (16) The court instructs the jury that, if, under the law and evidence, you find the issues in this cause for the plaintiff, the damages which you may award him should be compensatory only, and should not exceed the amount sued for in the petition. And in estimating such damages you will take into consideration, and allow him for, expenses incurred in treating his injuries; also compensation for the time he lost during his illness occasioned by his injury. And while the evidence may not prove any spe- cific sum, in dollars and cents, that plaintiff may have been dam- aged in by reason of his physical pain and mental anguish, yet you may allow him what you may believe to be just and fair to compensate him for such sufferings. You will also take into con- sideration, in estimating his damages, his diminished capacity for earning money, if you so believe from the evidence, and on account thereof make him such allowance as you may believe to be fair and just for any loss that you may believe from the evi- dence he has sustained in the past by reason thereof, and for any loss you may believe from the evidence be may sustain in his fu- ture earnings, by reason of such diminished earning capacity as may be occasioned by his injury.*' '" Galveston &c. R. Co. v. Collins, for his injury. This is the rule. But 31 Tex. Civ. App. 70, 71 S. W. 560. it is quite clear to us that the charge Similar instruction, see Galveston &c. does not announce otherwise." Texas R. Co. V. Jenkins, 29 Tex. Civ. App. &c. Coal Co. v. Choate (Tex. Civ. 440, 69 S. W. 233. App.), 159 S. W. 1058. ""The point is made that the re- '"This instruction "is criticized as covery should be of such a sum as being too indefinite, in not prescribing paid now would compensate appellee a standard for the measurement of § 442 INSTRUCTIONS FORMS. 492 (17) The court instructs the jury that if you find for the plaintiff, it will be your duty to determine from the evidence the amount of his damages, which should be actual compensation for his injuries. In doing so, you should carefully consider, from the evidence, the nature, extent, and character of the injuries sustained ; you should also determine whether or not the injuries to the plaintiff are permanent ; and you should allow him for all damages which naturally and directly result from his injuries, whether in the past or in the future. You should allow him such damages for bodily pain and mental anguish as, under the evir dence, you believe him entitled to ; and you should allow him such damages for physical and mental disability, if any such there be, as, from the evidence, you believe him entitled to. The law establishes no rule by which to fix the amount of damage foi bodily pain and mental anguj^sh, but leaves it to you to determine from the evidence the reasonable amount thereof. If you should find from the evidence that the plaintiff will suffer damage by reason of impaired capacity to earn money, if any such impaired capacity you find, then, in estimating this element of the plain- tiff's damage, you must bear in mind the fact that under the law the plaintiff would not be entitled to his earnings tmtil after he became twenty-one years of age, and you should not allow plain- tiff any damages for what he might otherwise have earned before coming of age. There is no testimony in this case upon which you can allow plaintiff anything for expenses occasioned by his injuries. ^^ (18) The court instructs the jury that if you find for plaintiff, then in estimating his damages you may take into consideration his time lost, if any, the impairment of his capacity to labor and earn money in the future, if any, his mental and physical suffer- ing, present and future, if any, and in your dispassionate judg- ment allow him such a sum as will fairly compensate him in so the damages to be allowed the plain- of the instruction is a sufficient an- tiff for physical pain and mental suf- swer to this hypercriticism." Rod- fering, or rather in not confining the ney v. St. Louis &c. R. Co., 127 Mo. jury to the amount which they should 676, 28 S. W. 887. find from the evidence that he ought °° South Omaha v. Sutliffe, 72 Nebr; to be allowed therefor. The reading 746, 101 N. W. 997. 493 DAMAGES. § 443 far as the evidence may have shown you he is entitled to damages in these respects." (19) The court instructs the jury that, if you find in favor of the plaintiff, you will assess such damages as in your judgment will actually compensate him for his impaired earning capacity, his suffering and pain which he has undergone and which you think probable from the testimony he will experience in the fu- ture, not exceeding dollars [the amount laid in the ad damnum].** § 443. Personal injuries — Loss of time and other elements. — (i) The court instructs the jury that you have heard the evi- dence on that — that his average earnings were so much, and that he lost so much time. That would be an element of recovery in the case if there should be a recovery.*" (2) The court instructs the jury in reference to the question of damages, that the law furnishes no fixed or defined standard for the guidance of the jury in awarding compensation in cases of this kind for the injuries sustained by the injured party, and the amount of damages to be awarded must be left, in view of the testimony, to the sense of right and justice of the jury. The plaintiff, if your finding be in his favor, should be fairly and justly compensated for the injuries he has sustained. In making your estimate of such damages, you are authorized to consider : ( I ) Such special expenses as may be shown by the testimony to have been incurred by the plaintiff by reason of his injuries dur- ing the period of his disability, while confined; (2) the value of the time lost by him during the period in which he was disabled, from his injuries, to work and labor, taking into consideration the nature of his business and the value of his services in con- ducting the same; (3) fair compensation for the mental and physical suffering caused by the injury; and (4) the probable effect of the injury in future upon his health, and the use of his International &c. R. Co. v. Wray, loss of time and average earnings. 43 Tex. Civ. App. 380, 96 S. W. 74. It authorized only damages for lost Harris v. Brown's Bay Logging earnings based on lost time.'' Mon- Cp., 57 Wash. 8, 106 Pac. 152. arch Livery Co. v. Luck (Ala.), 63 " This instruction did not authorize So. 656. "the jury to assess damages both for 8 443 INSTRUCTIONS FORMS. 494 injured hand, and his ability to labor and attend to his affairs, and, generally, any reduction of his power and capacity to labor and earn money and pursue the course of life which he might otherwise have done."" (3) The court instructs the jury that if you are satisfied by the preponderance of the evidence that the plaintiff received any of the injuries through the causes specified in the complaint, you will find for the plaintiff for damages in such sum as will com- pensate him for the injuries, if any, he has sustained, not exceed- ing, however, the sum of $io,ioo. The elements entering into damages are the following : ( i ) Such as will compensate him for the expense, if any, he has paid or incurred for care and medical attendance in consequence of such injuries, not exceeding the sum of $100. (2) If you are satisfied by a preponderance of the evidence that such injuries have impaired the plaintiff's power to earn money in the future, such sum as will compensate him for such loss of power. (3) Such reasonable sum as will compensate him on account of the pain and anguish he has suffered by reason of such injuries. (4) Such sum as will compensate him for time lost, if any, through any of said injuries. The first of these ele- ments is the subject of direct proof, and is to be determined by the jury on the evidence they have before them. The second, third, and fourth elements are, from necessity, left to the sound discretion of the jury under the evidence."^ (4) The court instructs the jury that if you find from a pre- ponderance of the evidence all of the issues in this case in favor of the plaintiff, and that he is entitled to recover, the measure of his recovery should be limited strictly to what is termed "compen- satory damages", not exceeding the sum of fifty thousand six hundred dollars. In assessing such damages the jury may con- sider the award : ( i ) Such sum as will compensate him for the reasonable value of the services for medical attendance, for medi- cines, nursing and hospital fees paid or incurred, if any such ex- penses have been proven, in attempting to effect a cure, and for nursing him during the period that he was disabled by his injury. (2) The value of his time during the period that he was disabled °° Davidson v. Southern Pac. Co., "■ Rogan v. Montana Cent. R. Co., 44 Fed. 476. 20 Mont. 503, 52 Pac. 206. 495 DAMAGES. § 443 by such injury, if it has been shown by the evidence. (3) If the injury is of a permanent nature, and has impaired the plaintiff's power to earn money in the future, such sum as will compensate him for such loss of power. And, finally, the jury may consider the pain and suffering, both mental and physical, to which plain- tiff has been subjected, if any; the loss of time and loss of wages which has resulted from his injury, if any; the nature and extent of his physical injuries; the effect upon his ability to earn his living since the injury occurred, as compared with his ability to do so before ; and the probable effect of those injuries upon his future health and strength. Under all these circumstances, and in view of all these facts, if you find plaintiff is entitled to re- cover, you should award him such damages as you, in your dis- passionate judgment, believe will be a reasonable and just com- pensation for the injuries, if any, he has sustained, not exceed- ing the sum of fifty thousand six hundred dollars.*^ (5) The court instructs the jury that, if you find for plaintiff, you will assess his damages in such sum as you find from the evidence, as fair-minded and reasonable men believe will be a fair compensation to him for his pain and suffering, if any, on account of his injuries, his loss of time, if any, and such pain and suffer- ing as you believe from the evidence he may suffer in the' future on account of such injuries, giving him such sum as you as fair- minded and reasonable men find to be fair and just between the parties.^^ (6) The court instructs the jury that if you find for the plaintiff, then in estimating his damages, they may take into con- sideration all the mental and physical pain and anguish already suffered by him, and all future mental and physical pain and anguish, if any, that will result to him from said injury ; also his loss of time, and the value thereof, since the date of his injury ; and if the jury find that his injuries are permanent and lasting in their character and effect, and that they will in the future dis- able him from earning money and making a support, or will im- pair his ability to do so, they should take these facts into consid- eration, and should estimate the value of the time and services " Northern Commercial Co. v. Nes- °' Fourche River Vail, &c. R. Co. tor, 138 Fed. 383, 70 C. C. A. 523. § 443 INSTRUCTIONS FORMS. 496 that he may thereby lose during his life; and the jury should assess plaintiff's damages at such sum as, in their judgment, will compensate him for all his losses and sufferings, both past and future, that has or will result to him by reason of his injury, not exceeding the sum of $ , the amount claimed in plaintiff's petition. °* (7) The court instructs the jury that if they find that the plaintiff had proven by a preponderance of the evidence the in- juries he has sustained as charged in the complaint, then every particular and phase of the injury may enter into the considera- tion of the jury in estimating his damages, loss of time, with ref- erence to his condition and ability to earn money in his business or calling, his loss from permanent impairment of his physical powers, his pain and suffering already endured, and that may be endured, from his injuries in the future, his personal disfigure- ment; and the jury should give the plaintiff such a sum as will compensate him for the injuries received, taking into considera- tion all the facts proven in the case."^ (8) The court instructs the jury that if you believe under these instructions and the evidence in the case that the plaintiff is entitled to recover damages from the defendant for any in- juries which he has proved by a preponderance of the evidence that he has sustained by reason of the facts set forth in his com- plaint, then you have the right to find for him such an amount of damages, not to exceed dollars, as you believe from the evi- dence will compensate him for the personal injuries so received, if any, and in doing so you have the right to consider the personal injuries received by him, if any have been proved, and any pain or suffering he may have endured in consequence thereof, if any pain or suffering has been proved, and you have the right to consider his loss of time, if any, caused by such injuries, if any have been shown.'" V. Tippett, 101 Ark. 376, 142 S. W. ilar instruction, see Pittsburgh &c. 520. R. Co. V. Collins, 168 Ind. 467, 80 N. °'Prewitt V. Missouri &c. R. Co., E. 415. 134 Mo. 615, 36 S. W. 667. °° Lehane v. Butte Elec. R. Co., " Pittsburg &c. R. Co. v. Mont- 37 Mont. 564, 97 Pac. 1038. gomery (Ind.), 49 N. E. 582. Sim- 497 DAMAGES. § 444 ' § 444. Personal injuries — Permanency of injuries and other elements. — (1) The court instructs the jury that in estimating the plaintiff's damages you should also consider the nature of the injuries suffered, as to whether they are Hkely to prove permanent, or temporary only.®^ (2) The court instructs the jury that if you find for the plain- tiff and award him damages, in fixing the amount of the same, you can not allow him anything for loss or shortening of life itself; but, if you believe from the evidence that shortening of life may be the result of the injury, this may be considered in determining the extent of the injury only, and the consequent disability to make a living and the mental and bodily suffering which may result.*^ (3) The court instructs the jury that if they find that the plaintiff was injured by the wrongful, negligent act of the de- fendant, the railroad's, agents and servants, and while plaintiff himself was acting with reasonable prudence, then, in assessing his damages, the jury should take into account the peril, if any there was, to plaintiff's life; the suffering of body and mind, if any there was; the fact, if it is a fact, as shown by the evi- dence that the injury he suffered was and is permanent; the ex- tent of it ; how far, if at all, the injury renders him less capable and fit to pursue his calling and business ;any loss of time shown ; its value, if shown ; any expense incurred. And, so considering said elements, the jury should assess such damages within the demand of the complaint as will reasonably and justly compen- sate plaintiff for his injuries.'* (4) The court instructs the jury that if they find from the evidence that the said injury is permanent, that prior to the said injury the plaintiff was capable of earning and did earn his living by manual labor, and that said injury has in whole or in part in- capacitated him from performing manual labor and earning his living, then you may take such facts into consideration in deter- =' Union Gold Min. Co. v. Craw- ker, 128 Ind. 542, 26 N. E. 178. For ford, 29 Colo, 511, 69 Pac. 600. like instruction, see Louisville &c. R. "Muncie Pulp Co. v. Hacker, Zl Co. v. Williams, 20 Ind. App. 576, Ind. App. 194, 76 N. E. 770. 51 N. E. 128. "■Terre Haute &c. R. Co. v. Brun- 32— Branson's Inst. § 444 INSTRUCTIONS FORMS. 498 mining plaintiff's damages. And, in this connection, the ad- mitted expectancy of life of the plaintiff, as shown by mortality tables may be considered. But, in this connection, regard should be had as to the probable time, during such expectancy of life, that the plaintiff might reasonably be expected to be capable of performing manual labor on account of his age.^ (5) The court instructs the jury that if the plaintiff sustained damages by reason of the negligence of defendant, the R. Co., as alleged, and you find for plaintiff, then the measure of his damage to his person is such sum in money as you may be- lieve from the evidence will compensate him for the injury sus- tained, if any, and in estimating his damages you should take into consideration the mental and physical pain, if any, which plain- tiff has suffered, and which he may hereafter suffer, as a result of his injuries, if any; and if you believe from the evidence that the injuries to plaintiff, if any, are of a permanent nature, and will impair his capacity to perform labor in the future, then in addition to the above you should find such sum as will compen- sate plaintiff for such diminished capacity, if any, to perforrn labor in the future.^ (6) The court instructs the jury that if you find for the plain- tiff, you will assess his damages at such a sum of money as in your opinion will be a reasonable and just compensation for the injuries he has sustained. In estimating the damages, you will take into consideration the physical and mental pain, if any, he has sustained by reason of such injuries, if any ; and if you be- lieve from the evidence that plaintiff has not recovered and that his injuries are permanent, and that he will hereafter suffer pain and anguish therefrom, and that his ability to labor and earn money subsequent to his majority is and will be impaired by rea- son of said injuries, if any, then you will take this into considera- tion in estimating the damages ; but you will exclude from your consideration any loss or impairment of earning power, if any, during his minority.^ ' Bettis V. Chicago &c. R. Co., 131 able as giving undue prominence to Iowa 46, 108 N. W. 103. tiie different items of damage. Cam- '^ Missouri &c. R. Co. v. Aycock eron Mill &c. Co. v. Anderson, 34 (Tex. Civ. App.), 135 S. W. 198. Tex. Civ. App. 105, 78 S. W. 8. 'The instruction is not objection- 499 DAMAGES. § 445 (7) The court instructs the jury that if you are satisfied from the evidence that the injury that the plaintiff has suffered is per- manent in its nature, and will continue to affect his health and physical condition in the future, and cause him pain and suffer- ing in the future, you should allow him, in addition, such sum as will reasonably compensate him for such pain and suffering and impairment of ability to earn a livelihood as he must suffer in the future.* (8) The court instructs the jury that the plaintiff is entitled, to damages for the pain and suffering she has endured in the past and which she may have to endure in the future. But, in order to assess damages for the future, you must be satisfied to a rea- sonable extent from the evidence that she will continue to suffer.^ §445. Personal injuries — Medical attendance and other elements. — (1) The court instructs the jury that if they shall find the defendant guilty it will then be their duty to assess the plaintiff's damages at such sum as the evidence may show, if any- thing, which he has actually sustained as the direct or proximate result of such injury, taking into consideration his loss of time, his pain and suffering, his necessary and reasonable expenses in being cured or attempting to be cured, if such facts are shown by the evidence;' and if the jury shall believe, from the evidence, that the plaintiff is permanently injured and is incurable they should take that into consideration in assessing the plaintiff's damages.® (2) The court instructs the jury that if you find for plaintiff, you should award him such a sum in damages as you may believe from the evidence will fairly and reasonably compensate him for the physical and mental sufferings, if any of either, the time, if any, not exceeding months, lost from his usual work or business, the cost to him of medicine and surgical bills, if any of either, incurred in effecting a cure, not to exceed $ , and for the permanent impairment, if any, of his power to earn money that may have resulted to and been directly caused plaintiff by *Kenyon v. MondoVi, 98 Wis. 50, 69 N. W. 67, 35 L. R. A. 249, 59 Am. n N. W. 314. St. 900. "Kliegel v. Aitken, 94 Wis. 432, "Consolidated Coal Co. v. Haenni, 146 111. 614, 35 N. E. 162. S 445 INSTRUCTIONS FORMS. 5OO the negligence, if any, of defendant's agents and servants com- plained of. But the damages, if any are allowed, should not alto- gether exceed $ , the amount claimed in the petition. The blank left in the instruction on the measure of damages is, of course, to be filled with the amount appellee may claim in the amended petition as the expense of his cure ; and so much of the same instruction as allows the recovery of damages for the per- manent impairment of his power to earn money is added, because , of the assumption that the amended petition will allege such per- manent impairment, from the injuries sustained.' (3) The court instructs the jury that if you find in favor of the plaintiff, then you will award him such a sum as in your judgment will be reasonable compensation for the loss and injury he has sustained by reason of this accident, 'and, in computing such sum, you may take into consideration the amount he has been required to expend for medical and surgical treatment and care and hospital expense which he has incurred by reason of such injury; the amount of money he would have earned but which was lost to him by reason of his disability; the pain and suffering he has undergone and the inconvenience and hindrance he has suffered by reason of the injury to his ankle and instep ; and such pain or suffering, annoyance and inconvenience that you may find he will suffer in the future.* (4) The court instructs the jury that if they find a verdict in favor of the plaintiff, they should assess her damages at such a sum as they believe from the evidence will be a fair pecuniary compensation to her. First. For any pain of body or mind which the jury believe from the evidence she has suffered, or will suffer, by reason of said injuries and directly caused thereby. Second. For any loss of the earnings of her labor which the jury believe from the evidence she has sustained, or will sustain, by reason of said injuries and directly caused thereby. Third. For any ex- pense necessarily incurred for medicines, medical or surgical at- tention, to the reasonable value thereof, which the jury believe 'Louisville &c. R. Co. v. Moore, 'Leonard v. Leahy, 169 Mich. 406, ISO Ky. 692, 150 S. W. 849. 13S N. W. 335. 50I DAMAGES. § 445 from the evidence she has incurred by reason of said injuries and directly caused thereby." (5) The court instructs the jury that if you find for the plain- tifif, in estimating and determining the amount of her damages, you should take into consideration, in connection with all the facts and circumstances in evidence, such reasonable sums, if any, as you beheve she necessarily paid out, or became obligated for, because of medical treatment and hospital charges on account of her injuries; the bodily pain and suffering and mental anguish endured by her, resulting from the injuries received; the char- acter and extent of her injuries, and whether they are permanent in their nature; the extent, if any, which she has been prevented and disabled by reason of such injuries from working and earn- ing a livelihood ; and if from the evidence you believe and find that her injuries are reasonably certain to cause her pain and anguish in the future and reasonably certain to impair or lessen her ability to work or labor in the future, you should take said facts into consideration also; and if you find for plaintiff you should find for her in such sum as in your judgment under all the evidence in the case will reasonably compensate her for the injuries received, but not to exceed the sum named in the peti- tion, to wit, $ .^^ (6) The court instructs the jury that if under the law and evi- dence you find the issues in this cause for the plaintiff, the dam- ages which you may award him should be compensatory only, and in estimating such damages you will take into consideration and allow him for expenses for doctor's bill incurred, if any, in treating his injuries ; also, compensation for the time lost, if any, during his illness occasioned by his injury. And while the evi- dence may not prove any specific sum in dollars and cents that plaintiff may have been damaged by reason of physical pain and mental anguish, yet you may allow him what you believe to be just and fair to compensate him for such sufferings, if any. You will also take into consideration, in estimating his damages, his diminished capacity for earning money, if you so believe from the evidence, and on account thereof make him such allowance as 'King V. St. Louis, 2S0 Mo. 501, "Torreyson v. United R. Co., 164 157 S. W. 498. Mo. App. 366, 145 S. W. 106. 8 445 INSTRUCTIONS FORMS. 502 you may believe to be fair and just for any loss that you may believe from the evidence he has sustained in the past by reason thereof, and for any loss you may believe from the evidence he may sustain in his future earnings, by reason of such diminished earning capacity as may be occasioned by his injury/^ (7) The court instructs the jury that if you find from the evi- dence, under the rules laid down in these instructions, that the plaintiff is entitled to recover damages from the defendant, then you are instructed that, in estimating the damages which you will award the plaintiff, you are entitled to take into considera- tion the extent of plaintiff's injuries, if any were suffered by him, the physical and mental pain and suffering which he has endured and which were the natural and proximate result of such injuries, and also that pain and suffering which it is reasonably certain that he will suffer in the future as the natural and proxin^ate re- sult of such injuries. You may also consider his loss of capacity, physical and mental, to attend to his usual business or perform the kind of labor for which he is fitted. You may also consider his loss of time from his business or occupation and that which is reasonably certain to result in the future as the natural, direct and proximate result of his injuries. You may also take into consideration the necessary medical and other expenses incurred by him in endeavoring to effect a cure or alleviate his condition. To recover for such expenses the plaintiff must show either that he had paid for such services or become liable to pay the same. He may also recover for such future expenses for medical and other expenses as it is reasonably certain that he will be com- pelled to incur for such treatment and care as are regarded neces- sary and imperative in his behalf as the direct and proximate result of the injuries from which he is suffering.^^ (8) The court instructs the jury that if you find that plaintiff is entitled to a verdict, then the amount of your verdict, if any, should be such sum of money as, in your best judgment, with the light of the testimony before you, will be a reasonable pecuniary compensation to plaintiff for all such physical pain, if any, and " Reynolds v. St. Louis Trans. Co., " Chicago &c. R. Co. v. Stibbs, 17 189 Mo. 408, 88 S. W. SO, 107 Am. Okla. 97, 87 Pac. 293. St. 360. 503 DAMAGES. § 446 mental suffering, if any, and impairment of his nervous system, if any, and impairment of his memory, if any, and impairment of his ability to earn money, if any, and expense, if any, incurred by plaintiff for the reasonable value of such services of a physi- cian as it may have been reasonably necessary for him to incur for the treatment of the wound on his head as plaintiff may have sustained as the direct result of the injuries sustained by him in falling off of said car on the .^' (9) The court instructs the jury that finding for plaintiff, the jury will award him such damages as will fairly compensate him for his expense for surgical service, for such pain and suffering as he has endured to date, and for inability to earn wages, all as proximately caused by the accident in question. Also such sura as will fairly compensate him for future pain and suffering, in- ability to earn wages, and the deprivation of the pleasures of life, all as produced by the lack of ordinary care in question on the part of defendant, if such there was, as proximate cause. And the jury, as to such future damages, must find to reasonable certainty, if they find the fact.^* § 446. Personal injuries — Disfigurement and other ele- ments. — (1) The court instructs the jury that, if you find for the plaintiff, you will find in such sum as will compensate her for her pain and suffering she has experienced, if any, occasioned by said injury; and, if you find from the evidence that plaintiff, by reason of said injury, if she was injured, has suffered disfig- urement of her person, you will also find in such sum as you be- lieve under the evidence will compensate her therefor.^^ (2) The court instructs the jury that you will assess such sum as will fairly and reasonably compensate the plaintiff for the pain and suffering the injury caused him, the humiliation or mental suffering, if any, the deformity has caused him, and such, if any, as it will cause him in the future — such inconvenience it has caused, and such, if any, as it will cause him in the future; the "Northern Texas Trac. Co. v. 147 Wis. 327, 132 N. W. 633, 11 L. Yates, 39 Tex. Civ. App. 114, 88 S. R. A. (N. S.) 489. W. 283. >= St. Louis &c. R. Co. v. Price, 83 "Benson v. Superior Mfg. Co., Ark. 437, 104 S. W. 157. § 447 INSTRUCTIONS FORMS. 5O4 extent, if any, to which it has diminished his earning capacity, and the extent, if any, to which it has affected his ability to play the piano or engage in other pastimes.^® § 447. Personal injuries — Humiliation and other elements. — The court instructs the jury that if you find for the plaintiff, that it will be your duty to assess his damages, and that in doing so you may take into consideration any injuries inflicted upon the plaintiff, the pain and suffering incident thereto, his humiliation and mortification, and assess his damages at such a sum 'as, in your judgment, you may find from the testimony would com- pensate him for the injuries done, pain, suffering and humilia- tion." §448, Personal injuries — Loss of wife's services. — (1) The court instructs the jury that if you find for the plaintiff in his own individual right, you will, in a separate finding, assess his damages in whatever sum you may believe from the evidence he has been damaged by reason of the loss of the service and companionship he would have received from her but for the in- jury complained of in his action.^^ (2) The court instructs the jury that if the plaintiff is found entitled to recover he should be allowed damages for loss of the services of his wife for such time in the future as it is reasonably certain he will sustain in view of the nature of her injuries, her age, her reasonable expectancy of life as shown by the life tables, her health, habits of life, and all other facts and circumstances in evidence bearing upon the question.^* "Sharon v. Winnebago Furn. Mfg. ciety and companionship of his wife: Co., 141 Wis. 185, 124 N. W. 299. and, where he is deprived of her serv- " The instruction is not open to ices and society or companionship, the objection that it contains an as- he has suffered a legal injury and is sumption of facts. St. Louis &c. R. entitled to compensation therefor." Co. V. Hudson, 95 Ark. 506, 130 S. Graysonia-Nashville Lumber Co. v. W. 534. Carroll, 102 Ark. 460, 144 S. W. 519. "In holding this instruction unob- "Croft v. Chicago &c. R. Co., 134 jectionable, the court says: "The Iowa 411, 109 N. W. 723. husband is entitled to the so- CHAPTER XLII. DEATH BY WRONGFUL ACT. Section Section 449. Burden of proof of negligence. 457. Damages — Annuity basis. 450. Presumption of exercise of due 458. Damages — Destruction of earn- care by deceased. ing powers. 451. Contributory negligence. 459. Damages — Loss of pecuniary ben- 452. Contributory negligence— Intoxi- efits by death of deceased. cation. 460. Damages — Present worth of re- 453. Damages. covery. 454. Damages — Death of parent. 461. Damages — Pain suffered by the 455. Damages — Death of husband and injured person before death- father. Survival statutes. 456. Damages — Death of infant. 462. Damages — Punitive damages. §449. Burden of proof of negligence. — (1) The court in- structs the jury that the burden of proof in this case rests upon the plaintiffs to establish their right to a recovery of damages by a preponderance of all the testimony. You are to indulge the presumption that the defendant lumber company was not guilty of any negligent or careless act in reference to the cause of the death of the said T. T., and the burden is upon the plaintiff to overcome this presumption by testimony, and, after a considera- tion of all the evidence in the case you find that the plaintiffs have failed to establish their right to damages by a preponder- ance of the evidence, then your verdict will be for the defendant.^ (2) The court instructs the jury that the mere fact that the intestate, H., wa,s killed in a collision on defendant's road while he was engaged in his duties as fireman, does not make the de- fendant liable to plaintiff in this suit for damages occasioned thereby; but the proof must show further, and show affirma- tively, that the collision which caused his death was due to some negligence upon the part of the defendant.^ * Thompson v. Southern Lumber 'St. Louis &c. R. Co. v. Haist, 71 Co., 104 Ark. 196, 148 S. W. 537. Ark. 258, 72 S. W. 893, 100 Am. St. S05 § 45° INSTRUCTIONS FORMS. 506 § 450. Presumption of exercise of due care by deceased. — The court instructs the jury that where a person is injured through the negligence of another, and such injured person there- after dies, and there is no witness to the happening of the injury, the law presumes that such injured person was exercising rea- sonable and ordinary care at the time of his injury with a view to his safety.^ §451. Contributory negligence. — (1) The court instructs the jury that even though they may believe from the evidence that the defendant's agents and servants were negligent in the op- eration of the train or cars which caused the accident in this ac- tion complained of, still, if the jury further believe from the evidence that plaintiff's intestate was also negligent, and that, but for his negligence, the accident would not have happened, then'the law is for the defendant, and the jury should so find.* (2) The court instructs the jury that in determining whether the plaintiffs contributed, by their negligence in the custody and care of their child, to its injury and death, you may consider whether or not they exercised that degree of care, caution, and watchfulness over their child, in keeping him off the street and out of danger, which was reasonable and proper for parents in their circumstances of life, as shown by the evidence.^ (3) The court instructs the jury that the burden of proof is upon the plaintiff to show, from the surroundings and circum- stances leading up to the accident, what the deceased was doing, and that he was free from negligence, as that term is defined in the main charge of the court, and that the defendant's serv- ants in charge of the locomotive were negligent, as that term is defined in the main charge of the court, and that such negli- 65. For instruction on proximate structions on determination of ques- cause, see Harrison v. Kansas City tion of cause, see Harrington v. Los Elec. Light Co., 195 Mo. 606, 93 S. Angeles R. Co., 140 Cal. 514, 74 Pac. W. 951, 7 L. R. A. (N. S.) 293. 15, 63 L. R. A. 238. Damages for 'Albrecht v. Morris, 91 Nebr. 442, death of minor, see Stumbo v. Du- 136 N. W. 48. luth Zinc Co., 100 Mo. App. 635, 75 * Louisville &c. R. Co. v. Price, 25 S. W. 185; Missouri &c. R. Co. v. Ky. L. 1033, 76 S. W. 836. Gilmore (Tex. Civ. App.), 53 S. ' Levin v. Metropolitan St. R. Co., W. 61. 140 Mo. 624, 41 S. W. 968. For in- 507 DEATH BY WRONGFUL ACT. § 452 gence on the part of the servants was the proximate cause of the death of the deceased." (4) The court instructs the jury that before the plaintiff can recover, it must appear from the evidence that her husband did not, by his neghgence, contribute to the accident which caused his death. He must have been free from fault. That is, he must not have been guilty of any negligence contributing to the causes which produced his death. In other words, he must have been free from fault or negligence."^ §452. Contributory negligence — Intoxication. — (1) The court instructs the jury that if you find from the preponderance of the evidence that A. was intoxicated at the time of his death, then, whether such intoxication had any connection with pro- ducing his death or not, your verdict will be for the defendant.' (2) The court instructs the jury that if you find from the proof that A. was intoxicated on the night of his death, and that he would not have been killed had he not been intoxicated, then your verdict will be for the defendant.^ (3) The court instructs the jury that if you believe, from the evidence, that the said J. J., at the time of the accident, was in- toxicated or in a state of intoxication; and if you believe that because of such intoxication he slipped and fell in front of or un- derneath one or more of the wheels pf said engine; and if you believe that he was guilty of negligence in being intoxicated, or in a state of intoxication (if you find he was), at said time and place; and if you believe such negligence, if any, caused or con- tributed to cause his injury and death — then in that event you will find for the defendant; but if you find that said J. J. was in- toxicated, or in a state of intoxication, that would not defeat a recovery, unless you further believe that the same was negli- ° Missouri &c. R. Co! v. Jones, 35 °a Atlantic Coast Line R. Co. v. Tex. Civ. App. S84, 80* S. W. 852. Jones, 132 Ga. 189, 63 S. E. 34. For other instructions on contrib- ' Knights of Maccabees v. Ander- utory negligence, see Sloss-Sheffield son, 104 Ark. 417, 148 S. W. 1016. Steel &c. Co. v. Hutchinson, 145 'Knights of Maccabees v. Ander- Ala. 686, 40 So. 114; Redus v. Mil- son, 104 Ark. 417, 148 S. W. 1016. ner Coal &c. Co., 148 Ala. 665, 41 So. 634. § 453 INSTRUCTIONS FORMS. 508 gence, and that such negligence caused or contributed to cause the injury." (4) The court instructs the jury that if you beheve, from the evidence, that at the time of the accident J. J. was in a state of intoxication, and that sucli state of intoxication placed him in such a condition that he was unable, and failed, to exercise the caution and care required of him under the general instructions of the court heretofore given you, and if you further believe that by reason of such condition he was injured, then in that event the plaintiffs can not recover.^" §453. Damages. — (1) The court instructs the jury that, in assessing damages in a case of this kind, they are not assessed by way of penalty or punishment nor of sentiment, nor to com- pel the defendant to contribute to the support of a minor, but are allowed only upon the basis of such pecuniary loss as the proof shows the party in interest has sustained; and this is to be determined by the rules given you in the previous instruc- tions.^^ (2) The court instructs the jury that, as a matter of law, if they believe from the evidence that J. M., while in the exercise of ordinary care, and without fault or negligence on his part, lost his life by and through the wrongful act, negligence, or de- fault of the defendant, as charged in the declaration, and that said J. M. left, him surviving, next of kin, then the jury should find the defendant guilty, and assess the plaintiff's damages at such sum as they shall believe, from the evidence, fair and just compensation, based upon the pecuniary loss, if any, resulting from the death of the said J. M. to his next of kin, not exceed- ing the sum claimed in the declaration filed herein.^^ " Missouri &c. R. Co. v. Jones, 35 Co. v. Freeman, 83 Fed. 82, 27 C. C. Tex. Civ. App. 584, 80 S. W. 852. A. 457. Measure of damages, see " Missouri &c. R. Co. v. Jones, 35 Chesapeake ^c. R. Co. v. Lang, 100 Tex. Civ. App. 584, 80 S. W. 852. Ky. 221, 40 S. W. 451; Oulighan v. " St. Louis &c. R. Co. V. Haist, 71 Butler, 189 Mass. 287, 75 N. E. 726. Ark. 258, 72 S. W. 893, 100 Am. St. ""The only objection made by ap- 65. See also Toledo R. &c. Co. v. pellant to this instruction is that the Ward, 25 Ohio Cir. Ct. R. 399; Lou- word 'based' was improperly used, isville &c. R. Co. v. Kelly, 100 Ky. and that the jury could, and probably 421, 38 S. W. 852; Northern Pac. R. did, add, in making up their verdict, 509 DEATH BY WRONGFUL ACT. § 454 (3) The court instructs the jury that if they find for the plaintiff, they shall assess such damages as will, in the opinion of the jury, reasonably compensate plaintiff for the loss sus- tained by the death of plaintiff's intestate, not exceeding thirty thousand dollars ; and, in fixing the amount of such compensation, the jury may take into consideration the power of the deceased to earn money/' §454. Damages — Death of parent. — (1) The court in- structs the jury that by pecuniary aid is meant not only money, but everything that can be valued in money, and, in the case of the infant child, E. J. G., it includes the reasonable pecuniary value of the nurture, care, and admonition, if any, you believe from the evidence said child would have received from the said E. H. G., deceased, had he lived during its minority. If you find for plaintiffs, or any of them, you will not allow anything for any grief or sorrow on account of the death of the said E. H. G., or the loss of his society, affection, or companionship. If you should find for plaintiffs or any of them, then you will apportion the amount so found among them in such sum as you may deter- mine each is entitled to receive.^" (2) The court instructs the jury that in estimating the value, the money, or pecuniary value of the father's life to this boy, you can consider not only, not alone, the father's habits in life, the mental qualifications and capacity for accumulating property or earning, but you also have a right to consider any pecuniary loss, if this boy has sustained any such, which the evidence may show he has sustained by a preponderance of the evidence by reason of the loss of the care or society, training, guidance, and counsel of this father, which, as I have instructed you, he had a right to expect.^" interest and speculative damages to "Chesapeake &c. R. Co. v. Dixon, the pecuniary loss. The instruction 104 Ky. 608, 20 Ky. L. 792, 47 S. W. is not subject to the objection made, 615. nor could the jury reasonably have "St. Louis &c. R. Co. v. Geer inferred their right to do this from (Tex. Civ. App.), 149 S. W. 1178. this instruction. There was no error " "The clause in the instruction, ni the giving of this instruction." 'capacity for accumulating property,' Webster Mfg. Co. v. Mulvanny, 168 is not apt, but, when read in connec- III. 311, 48 N. E. 168. tion with the context, it seems plain S 455 INSTRUCTIONS FORMS. 5IO (3) The court instructs the jury that you will then consider from all the facts and circumstances in the case what sum of money he would probably have expended in the care, support, maintenance, and education of the minor child, M. M. N., from the period of his death until said M. M. N. should have arrived at the age of eighteen years. You will likewise consider the care, attention, advice, and training which he would probably have given her from the time of his death until she reached the age of eighteen years, and determine what the pecuniary value of that for that period of time would be to her.^^ § 455. Damages — Death of husband and father. — (1) The court instructs the jury that if you find for the plaintiff, your verdict should be for such a sum of money as you believe from the evidence would be a just and fair compensation for all the pe- cuniary injury suffered by her by reason of the injury and death of the said , and in arriving at this sum you may take into consideration such care, support, and sustenance, and such ad- vantages and benefits in the way of training and education, both moral and intellectual, if any, as you may believe, from the evi- dence, she would receive from or through him if his injury and death had not occurred.^* (2) The court instructs the jury that, if you find for the plain- tiff, you will assess the damages at such amount as will fairly compensate deceased's widow and estate for such damages as are shown by the proof to have been sustained by each, if any, caused by the injury and death of G. A. W., allowing the widow such amount of pecuniary damage as she has suffered, if any, by reason of the injury and death of her husband, basing such dam- ages on the present value of the amount that, in your judgment, deceased would have contributed to the support and well-being of that the jury could not have under- Ark. 258, 72 S. W. 893, 100 Am. St. stood that they were to consider the 65. For other instructions on the expectation of inheritance as an ele- elements of damages for death by ment of damage." Rochester v. Se- wrongful act, see Northern Pac. R. attle &c. R. Co., 75 Wash. 559, 135 Co. v. Freeman, 83 Fed. 82, 27 C. C. Pac. 209. A. 457; Hillebrand v. Standard Bis- "Neal V. Phosnix Lumber Co., 64 cuit Co., 139 Cal. 233, 73 Pac. 163; Wash. 523, 117 Pac. 267. Malott v. Shimer, 153 Ind. 35, 54 N. " St. Louis &c. R. Co. V. Haist, 71 E. 101, 74 Am. St. 278. 511 DEATH BY WRONGFUL ACT. g 455 his wife during his hfetime, having regard to the probable dura- tion of his Hfe, the amount he has customarily contributed to the support and well-being of his wife, if anything, and what, in your judgment, he would have contributed to her during the re- mainder of his life but for the accident causing his death, taking into consideration the age, health, habits, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or diminution of that ability with the lapse of time, his earning power and rate of wages, and you will award his estate such amount of damage as will fairly compen- sate for the mental and physical pain and suffering endured by the deceased, if any, between the time of his injury and the time of his death.^° (3) The court instructs the jury that if your verdict shall be for the plaintiff, such damages may be given by you to plaintiff as, under all the circumstances of the case, may be just. And in determining the amount of such damages, you have the right to take into consideration the pecuniary loss, if any, suffered by this plaintiff in the death of the said [name of person killed] by being deprived of his support; also the relations proved as ex- isting between plaintiff and deceased at the time of his death, and the injury, if any, sustained by her in the loss of his society.^" (4) The court instructs the jury that if you find a verdict in favor of plaintiff, you are not confined, in assessing the dam- ages, to the pecuniary value of the services of the deceased child to his next of kin until he would have arrived at the age of twenty-one, but the jury may consider the pecuniary benefit which the next of kin might have derived from said deceased, had he not been killed, at any age of his Hfe.^^ "Warren &c. Val. R. Co. v. Wal- toward each other, the society, are all 'drop, 93 Ark. 127, 123 S. W. 792. parts of 'all the circumstances of °In approving this instruction, the the case,' for the jury to take into court says : "The loss of a kind consideration in estimating what dam- husband may be a considerable pe- ages would be just, from a pecuniary cuniary loss to a wife; she loses his point of view." Beeson v. Green advice and assistance in many mat- Mountain Gold Min. Co., 57 Cal. 20. ters of domestic economy. * * * "United States Brewing Co. v. The social and domestic relations of Stoltenberg, 211 111. 531, 71 N. E. the parties, their kindly demeanor 1081. § 455 INSTRUCTIONS FORMS. 512 (5) The court instructs the jury that, if you find for the plaintiff, you will award such damages as in your judgment will fairly compensate his widow and children, if any, dependent on him for support, not exceeding the amount named in the com- plaint.^^ (6) The court instructs the jury that if they believe from the evidence that on the day of , , F. D. came to his death, while in the exercise of ordinary care for his own safety, in the manner and by the means set forth in the amended declara- tion filed herein; and if the jury further believe from the evi- dence that the death of the said F. D. was caused by the negli- gence of the defendant Power Company, as charged in the declaration; and if the jury further believe frorn the evidence that the said F. D. left, him surviving, a widow and children, as charged in the declaration, and that such widow and children by the death of the said F. D. have been and are deprived of their means of support — then, in law, the plaintiff is entitled to re- cover.^^ (7) The court instructs the jury that if you find from the evidence, you find for plaintiffs, and you award them damages, then in fixing the amount of your verdict you will allow the plaintiff, G. D. H., husband, and B. H. and E. H., minor children of deceased, such sum of money, if paid now, as will be a fair compensation to them for the loss of pecuniary benefits sus- tained by them in the death of T. H. (and by "pecuniary benefits" is meant not only money, but such loss as the evidence shows that the plaintiffs have suffered, directly and proximately, from the death of T. H., and which can be valued in money, and in case of minor children includes the reasonably pecuniary value of nurture, care and education which they would have re- ceived from their deceased parent during their minority had she lived) ; and you will separate or apportion in your verdict the sum, if any, which you will allow G. D. H., the surviving hus- ^" Indianapolis &c. Trac. Co. v. '^Economy Light &c. Co. v. Ste- Newby, 45 Ind. App. 540, 90 N. E. phen, 187 111. 137, 58 N. E. 359. See 29. For similar instruction, see Keast also Callison v. Brake, 129 Fed. 196, V. Santa Ysabel Gold Min. Co. (Cal.), 63 C. C. A. 354. 68 Pac. 771. 513 DEATH BY WRONGFUL ACT. § 456 band, and the sums, if any, which you allow to each of the minor children, B. H. and E. H. You can not allow plaintiffs any- thing by way of consolation for the death of T. H., or for any sorrow, anguish or grief suffered by them as the result of her death, or for the loss of the society, affection or companionship of deceased, and you will exclude all such consideration from your verdict.^* (8) The court instructs the jury that if they shall find for the plaintiff, in estimating his damages they may take into con- sideration compensation for the loss of his care, attention, and society to his family, together with such sum as they may deem fair and just by way of solace and comfort to them for the sor- row, suffering, and mental anguish occasioned by his death, not to exceed, however, the sum of ten thousand dollars.^' §456. Damages — Death of infant. — (1) The court in- structs the jury that if you find for plaintiffs, you will find for them such sum of money, if any, as you may find and believe from the evidence to be the pecuniary value to plaintiffs of the services of J. G. from the time of his death tmtil he reached the age of twenty-one years, after deducting therefrom the cost of his maintenance for the same period of time. In estimating the value of said services, you will look to the habits of energy of deceased, J. G., his age and disposition; and, in estimating the cost of his maintenance, you will take into estimation the prob- able cost of his board, clothing, and all such other expenses as the parents would probably have incurred on his account for that period of his minority.^' "Missouri &c. R. Co. v. Hurdle 850. See also Memphis Consol. Gas (Tex. Civ. App.), 142 S. W. 992. &c. Co. v. Letson, 135 Fed. 969, 68 "^ "The evidence shows that the de- C. C. A. 453. ceased was sixty-four years of age; *° Missouri &c. R. Co. v. Gilmore that he left a family consisting of a (Tex. Civ. App.), 53 S. W. 61. For wife, three sons, and two daughters ; other instructions in actions for death and that he was a ship calker by of minor, see Zimmerman v. Denver trade, with practically constant em- Consol. Tramway Co., 18 Colo. App. ployment. This evidence was suffi- 480, 72 Pac. 607; Stumbo v. Duluth cient to warrant the court in giving Zinc Co., 100 Mo. App. 635, 75 S. W. the instruction." Portsmouth St. R. 185. Elements of damages for death Co. V. Peed, 102 Va. 662, 47 S. E. by wrongful act, see Northern Pac. 33— Branson's Inst. §457 INSTRUCTIONS FORMS. '5I4 (2) The court instructs the jury that if you find for the plain- tiff, the measure of damages is what you find and beheve from the evidence before you would have been the reasonable value of the services of the deceased boy to the plaintiff from the time of his death until he would have arrived at the age of twenty-one years.^' (3) The court instructs the jury that if the plaintiff is enti- tled to recover, the measure of his damages would be the reason- able value of the services of his son V. from the date of his death until he became twenty-one years of age, less the reasonable ex- pense of providing him with the ordinary necessaries of life dur- ing that time.^^ § 457. Damages — Annuity basis. — (1) The court instructs the jury that if the plaintiff is entitled to recover, the measure of damages is that sum which, being put out at interest at eight per cent, per annum, will yield each year, by taking a proportionate part of the principal and adding it to the interest, the amount of his yearly contributions to his family (less his personal ex- penses), and as that the whole remaining principal at the end of his expectancy of life added to the interest on his balance for that year will equal the amount of his yearly contributions to his family.^' (2) The court instructs the jury that you will ascertain the present value of such net income or accumulation by first ascer- taining what one dollar, interest at six per cent., will amount to for the time you have found that the plaintiff's intestate would have lived. Then you will divide the net income by the amount you have found one dollar and interest for such time to amount R. Co. V. Freeman, 83 Fed. 82, 27 C. " Texas &c. R. Co. v. Yarbrough C. A. 457; Hillebrand v. Standard (Tex. Civ. App.), IZ S. W. 844. For Biscuit Co., 139 Cal. 233, IZ Pac. similar instruction, see Speight v. 163 ; Malott v. Shimer, 153 Ind. 35, 54 Seaboard Air Line R. Co., 161 N. N. E. 101, 74 Am. St. 278. Measure Car. 80, 76 S. E. 684. of damages for wrongful death, see ^Terre Haute &c. Trac. Co. v. Oulighan v. Butler, 189 Mass. 287, Maberry (Ind.), 100 N. E. 401. 75 N. E. 726; Chesapeake &c. R. Co. ''Decatur Car Wheel & Mfg. Co. V. Lang, 19 Ky. L. 65, 40 S. W. 451. v. Mehaflfey, 128 Ala. 242, 29 So. 646. 515 DEATH BY WRONGFUL ACT. § 459 to, and the amount thus ascertained will be your answer to the second issue.^" §458. Damages — Destruction of earning powers. — (1) The court instructs the jury that if you find for the plaintiff, you will award her such sum in damages as you may believe from the evidence will fairly and reasonably compensate the estate of said decedent for the destruction, if any, of his power to earn money, not exceeding, however, the sum of $ , the amount claimed in the petition.^^ (2) The court instructs the jury to find for the plaintiff in such sum as you may believe from the evidence will reasonably and fairly compensate the estate of J. K. for the destruction of the power of J. K. to earn money.^^ § 459. Damages — Loss of pecuniary benefits by death of deceased. — (1) The court instructs the jury that the pecuni- ary loss in such case means the value in money, if any, of the life of the deceased to her father and mother.^^ (2) The court instructs the jury that if you find from the evidence that the defendant is guilty of the negligence charged in the plaintiff's declaration, and that the same resulted in the death of C. F. G., then the plaintiff is entitled to recover in this action, for the benefit of the next of kin of said deceased, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation for whatever pecuniary damage, if any, the evidence shows said next of kin have sus- tained by reason of said death, not exceeding five thousand dollars.^* (3) The court instructs the jury that if you find for plaintiffs, and further find from the evidence that the injuries of the said C. M. H., if any, proximately caused his death, and that both ""Watson V. Seaboard Air Line R. heirs of the deceased were her fa- Co., 133 N. Car. 188, 45 S. E. 555. ther and mother). '* Illinois Cent. R. Co. v. Dallas, "Illinois Cent. R. Co. v. Gilbert, 150 Ky. 442, 150 S. W. 536. 157 111. 354, 41 N. E. 724. For '^Louisville &c. R. Co. v. Kelly, similar instruction, see Elgin &c. R. 100 Ky. 421, 40 S. W. 452. Co. v. Thomas, 215 111. 158, 74 N. E. '= Hillebrand v. Standard Biscuit 109. Co., 139 CaL 233, 73 Pac. 163 (the §459 INSTRUCTIONS FORMS. 516 plaintiffs were damaged thereby, you should award plaintiffs such a sum as you believe from the evidence would compensate them for the pecuniary loss, if any, which you believe from the evidence they have sustained by reason of the death of the said C. M. H., if any, and, iii the event you so find for plaintiffs, you should apportion such amount and say in your verdict what sum, if any, you allow the plaintiff M. H., and what sum, if any, you allow the plaintiff J. A. H.== (4) The court instructs the jury that if you find the defendant guilty under the evidence and the instructions of the court, then it is your duty to assess the plaintiff damages, and in assessing the damages you have a right to take into consideration all of the testimony bearing upon that question, and allow such damages as you may deem a fair and just compensation, with reference to the pecuniary injuries resulting from the death of the plaintiff's intestate, to his widow and next of kin; and in estimating the plaintiff's damages you have a right to take into consideration whatever 3rou may believe, from the evidence, the widow and next of kin might have reasonably expected, in a pecuniary way, from the continued life of the intestate.'^ (5) The court instructs the jury that if, in view of foregoing instructions, your verdict shall be for plaintiffs, and you award them damages, then in fixing the amount of your verdict you will allow them such a sum of money as you find from the evidence will be a fair compensation to them for the pecuniary loss, if °^"The proposition asserted under it that the charge is not obnoxious the assignment is that 'the court com- to the objections urged. It only al- mitted affirmative error in the charge lows compensation for such pecuni- in submitting the measure of dam- ary loss, if any, as plaintiffs sus- ages to the jury without any legal tained by reason of the death of guide or instruction as to what ele- C. M. H." Galveston &c. R. Co. v. ments of damage could be taken into Heard (Tex. Civ. App.), 91 S. W. consideration by them, and was espe- 371. For similar instruction, see Tex- cially erroneous in that it omitted to arkana &c. R. Co. v. Frugia, 43 Tex. instruct the jury that in awarding Civ. App. 48, 95 S. W. 563. damages they should not allow any °° Cleveland &c. R. Co. v. Keenan, compensation for the grief of the 190 111. 217, 60 N. E. 107. Instruc- widow or for the loss of the society tion involved but not misleading, see and companionship of the husband Cleveland &c. R. Co. v. Keenan, 190 upon the part of the wife.' We take 111. 217, 60 N. E. 107. 517 DEATH BY WRONGFUL ACT. § 459 any, sustained by them in the death of said G. W. J., separating by your verdict the sum, if any, you allow to plaintiff E. J. for herself, and the sum, if any, for the benefit of her daughter, F. J.'' (6) The court instructs the jury that if you find for the plain- tiffs, you will determine from the evidence that probable amount and value of the pecuniary aid, if any, which the said B. W. would probably have contributed after the day of , , if he had not been killed, to the plaintiffs, A. M. W., S. W., H. E. W., and B. L. W., or to any one or more of them, and the probable pecuniary value, if any, of the counsel and advice, if any, which the said H. E. W. and the said B. L. W. would probably have received from the said B. W., if he had not been killed, and fix the damages, if any you find, in such sum as you find from the evidence, if paid in hand at this time, would justly and fairly compensate them, respectively, for the pecuniary loss, if any, resulting to them by reason of the death of the said B. W. ; and you will apportion the damages so found, if any, between the plaintiffs in such shares as to you may seem just, stating in your verdict the amount, if any, you find for the respective plain- tiffs; but in this connection you are instructed that, if you find for either or all of the plaintiffs, they are not entitled to recover any damages on account of grief or distress of mind or loss of society because of the death of the said B. W., but can only recover damages for such pecuniary loss, if any, as the evidence may show they have sustained, respectively, on account of his death.^« (7)' The court instructs the jury that if you find that the plaintiffs are entitled to recover, then you will apportion the sum so found among them in such sums as you may determine each is entitled to receive; and you are instructed that the measure of damages, if plaintiffs are entitled to recover, is such sum as would represent the worth or value of the future earnings of the deceased. A., which his daughters, who are plaintiffs herein, had a reasonable expectation he would have contributed to them had he lived, and in determining the amount of damages, if any, "Galveston &c. R. Co. v. Johnson, ''International &c. R. Co. v. White 24 Tex. Civ. App. 180, 58 S. W. 622. (Tex. Civ. App.), 120 S. W. 958. / § 460 INSTRUCTIONS FORMS. S18 sustained by them on account of the death of the said H. W. A., you may consider said A.'s capacity for earning money, his age at the date of his death, and the probable expectancy and duration of his life/* §460. Damages — Present worth of recovery. — (1) The court instructs the jury that they are not at liberty to take the aggregate of any such amounts for any such years, nor a sum which, at interest, would yield such amounts ; but the true meas- ure of damages is the present value of such sum, judged by the number of years that such contributions might be expected to continue, as shown by the proof.*" (2) The court instructs the jury that, if, under the evidence and instructions given you in this charge, you should find for the plaintiff, you will then proceed to determine from the evidence and assess the amount of her recovery herein, and the measure of such recovery, if any, will be the present worth or value of the estate which the said L. H. H. would reasonably be expected to have saved and accumulated if he had lived out the natural term of his life. The measure of recovery, in cases of this character, is not the sum which, when placed at interest will yield an amount equal to the income of the deceased at the time of his death; nor the amount necessary for the support of his fam- ily. But, as already stated, it is that amount estimated at its present worth, which under all the circumstances disclosed in the evidence, you believe would have come to his estate at the end of his natural life. In estimating such damages, if any you award the plaintiff, you may and should consider, so far as shown by the evidence, the age and occupation of the said L. H. H. at the time of the injury which caused his death, his bodily health and ability to earn money, his habits as to industry, thrift, and economy, if any such have been shown, the contingencies of life, such as ill health, nonemployment, increase or diminution in earning capacity as age advances, and all the other facts and "St. Louis Southwestern R. Co. 65. See also Denver &c. R. Co. v. V. Bowles, 32 Tex. Civ. App. 118, 72 Gunning, 33 Colo. 280, 80 Pac. 727; S. W. 451. Waechter v. Second Ave. Trac. Co., "St. Louis &c. R. Co. v. Haist, 71 198 Pa. 129, 47 Atl. 967; Oulighan v. Ark. 258, 72 S. W. 893, 100 Am. St. Butler, 189 Mass. 287, 75 N. E. 726. 519 DEATH BY WRONGFUL ACT. § 46 1 circumstances in evidence tending to show the amount, If any, that the estate might have accumulated if he had Hved out the term of his natural life, and award the plaintiff such a sum as you believe from the evidence, under the rules as herein stated, will be a fair and reasonable compensation for the loss sustained by the estate of the said L. H. H., as a result of his death.*^ (3) The court instructs the jury that the measure of damages for loss of life of plaintiff's intestate is the present value of his net income, and this is to be ascertained by deducting the cost of living and expenditure from his net gross income, and then estimating the present value of the accumulation from such net income, based upon his expectation of life. In applying this rule to the facts in this case, and to enable the jury to properly estimate the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they should consider his age, habits, industry, means, business qualifications, skill, and his reasonable expectation of life.^^ § 461. Damages — Pain suffered by the injured person be- fore death — Survival statutes. — (1) The court instructs the jury that if you find for the plaintiff as administrator, you will assess the damages at whatever sum you may find from the tes- timony to be a fair and reasonable compensation for the pain and suffering, if any, that was endured by plaintiff's intestate on account of the injury complained of. And in this you are to be guided by your sound judgment and discretion as jurors.** (2) The court instructs the jury that if you believe from the evidence that was in the employ of defendant as fireman " Hammer v. Janowitz, 131 Iowa susceptible of this construction. The 20, 108 N. W. 109. jury were plainly told that they were Benton v. North Carolina R. Co., to assess the damages at whatever 122 N. Car. 1007, 30 S. E. 333. sum they found from ' the testimony *' In approving this instruction, the to be a fair and reasonable compensa- higher court says : "It is insisted tion, and the court meant to tell them that the court erred in giving this that they were to be governed by instruction because by it the jury their judgment in determining from were directed to be guided by their the testimony what the amount of judgment and discretion, instead of damages ought to be." Graysonia- the testimony, in assessing damages. Nashville Lumber Co. v. Carroll, 102 We do not think, the instruction is Ark. 460, 144 S. W. 519. § 461 INSTRUCTIONS FORMS. 52O on a locomotive drawing one of its freight trains on one of its tracks or lines of railroad in the state of Louisiana on the day of , ; that while in such employ the locomotive or train on which he was serving came inta collision with a passen- ger train of defendant, or an engine drawing it, and that he was thereby killed, or so badly injured that he died in a short time thereafter ; that the freight train on which he was serving should have been side-tracked at , so as to let the passenger pass it, and that, if it had been so side-tracked, the collision would not have occurred; that the conductor knew that was the proper place to take the side-track with his freight train, and let the passenger train pass it, but that he was negligently asleep, dozing, or inattentive when was reached, and so failed to know when it was reached, and thereby negligently permitted the freight train to go ahead on the main track, and thereby caused the collision; that under the unwritten law of the state of Louisi- ana, as it is and then was, the conductor of a railroad train in that state represents or personates the railway company, and that the company is liable, under said law, for any damages or injury caused to its other employes on the train by or through such conductor's negligence or inattention in conducting the train; that under and by provision of the statute law of the state of Louisiana, as it is and then was, any person who by any act whatever causes damages to another is bound to repair the damage, and that the right of action therefore survives, in case of death, in favor of the minor children or widow of deceased who survive him, and that such survivors have also the right to recover the damages sustained by them by the death of the deceased; that said left no widow, but left the plaintiff as his only child and heir at law, whose mother was then dead ; that he contributed to plaintiff's support, and that plaintiff is a minor and was damaged by his death — you should find for the plaintiff." (3) The court instructs the jury that if you should find for J. A. P., as administrator of the estate of A. P., deceased, under the instructions in this case, then you should take into con- " St. Louis &c. R. Co. V. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. 6S. 521 DEATH BY WRONGFUL ACT. § 462 sideration the pain and suffering, mental and physical, if any, of the said A. P., caused by said accident.*'* (4) The court instructs the jury that, if you find for plaintiff, you will render a verdict for all damages sustained in conse- quence of the injury to and death of the young man. These will comprise a reasonable amount for any pain and suffering he en- dured from the time of the injury to his death, and, in addition, a reasonable amount for all sums that he would probably have earned during the years that he would probably have lived but for the injury. Your verdict will be the sum of these two. You are not concerned with the amount of earnings that the young man would probably have saved during his probable life, but only with the probable earnings themselves. The table of expectancy put in evidence shows that, if of good health, he might have lived forty years longer than he did. Estimate the present vvorth of his probable earnings during the time that he would probably have lived at five per cent, simple interest for each year, and the sum of these for the several years that he would probably have lived will be the amount of your verdict for loss of earnings.*^ §462. Damages — Punitive damages. — (1) The court in- structs the jury that it will be your duty in this case to find for the plaintiff in such sum as you may believe from the evidence will reasonably and fairly compensate the estate of J. K. for the destruction of the power of J. K. to earn money; and if you shall iind from the evidence that the death of J. K. was caused by the gross negligence of the defendant, its agents or employes, then you may, in your discretion, find in favor of the plaintiff such a further sum as punitive or exemplary damages as you may be- lieve from all the evidence that you have heard in the case is right and proper, not exceeding, however, in all, the sum of thirty thousand dollars, the amount claimed in the petition.*^ '"St. Louis &c. R. Co. V. Prince, "Louisville &c. R. Co. v. Kelly, 101 Ark. 315, 142 S. W. 499. 100 Ky. 421, 38 S. W. 852. * "Davis V. Michigan Cent. R. Co., 147 Mich. 479, 111 N. W. Id. CHAPTER XLIII. decedents' estates. Section Section 463. Claim against estate — Time of 465. Claims against estate — Services accrual. rendered deceased in his life- 464. Claims against estate — Attor- time. neys' fees. 466. Sufficiency of evidence to estab- lish claim. § 463. Claims against estate — Time of accrual. — The court instructs the jury that, if they beHeve from the evidence that some portion of the plaintiff's claim accrued and was due more than three years before the institution of this suit, then the plaintiff can not recover for such portion, under' the pleadings in this cause, unless they shall further find that the defendant or his decedent promised to pay the same within three years before the bringing of this suit.^ §464. Claims against estate — Attorneys' fees. — (1) The court instructs the jury that if you find from the evidence that plaintiff performed any services for defendant in and about the estate of her brother G. S., deceased, but that such services were not legal services, but were business transactions only, then you will not be warranted in considering the expert testimony ad- duced on the trial in this case tending to show the value of legal services as such.^ (2) The court instructs the jury that if they believe from the evidence that defendant did not employ plaintiff as a lawyer to ^Gill V. Staylor, 93 Md. 453, 49 580, 84 Pac. 697; Stanley v. Pence, Atl. 650. For other instructions 160 Ind. 636, 67 N. E. 441. on claims against estates, see Chand- "Warder v. Seitz, 157 Mo. 140, 57 ler v. Baker, 191 Mass. 579, 78 N. E. S. W. 537. See Currey v. Butcher, g 387; Sprague v. Sea, 152 Mo. 327, 37 Ore. 380, 61 Pac. 631, for errone- 53 S. W. 1074; Bull v. Payne, 47 Ore. ous refusal to instruct. 522 523 decedents' estates. § 465 perform the alleged services in question, then plaintiff can not recover, and your verdict must be for defendant.^ § 465. Claims against estate — Services rendered deceased in his lifetime. — (1) The court instructs the jury that if you believe that the contract was made between the plaintiff and [the testator] ; that she was to go to his home and care for him and wait on him ; and if you believe that the cooking of his meals and the serving of the same was part of her duty under the contract, if it was contemplated by both parties that [such] was to be a part of the taking care of him and waiting on him — then she would be entitled to recover for that, and that would be taken into consideration in fixing the worth of her services, if you find she is entitled to recover.* (2) The court instructs the jury that the defendant pleads that he does not owe the plaintiff anything, for the reason that she has been paid. I charge you, if you believe that the contract was made and services rendered, then the burden would be on the defendant to prove payment.^ (3) The court instructs the jury that where one is taken into the family of another, and is regarded and treated in every re- spect as a member of the household, and is a member of such family, even when there may be no ties of blood, there is no im- plied obligation to pay for services rendered, on the one hand, nor for board, schooling, clothing, care, and medical attention, on the other.° (4) The court instructs the jury that if you find from the evi- dence that the claimant was not a relative or member of the fam- ily of decedent, and you should further find that she did valuable services for the decedent in her lifetime, as alleged in the com- ' Warder v. Seitz, 157 Mo. 140, 57 °This instruction does not, in ef- S. W. S37. The refusal of this in- feet, state that the defendant admit- struction was held to constitute error, ted the contract and had filed a plea see Currey v. Butcher, 37 Ore. 380, of payment. Belcher v. Craine, 135 61 Pac. 631. Ga. 73, 68 S. E. 839. ^Belcher v. Craine, 135 Ga. 73, 68 "Boyd v. Starbuck, 18 Ind. App. S. E. 839. For instruction on con- 310, 47 N. E. 1079. See also Sprague tractual relation between testator and v. Sea, 152 Mo. 327, S3 S. W. 1074 ; defendant, see McCain v. Smith, 172 Chandler v. Baker, 191 Mass. 579, 78 Mich. 1, 137 N. W. 616. N. E. 387. § 465 INSTRUCTIONS — FORMS. 524 plaint, and you should further find that the decedent from time to time declared her purpose of providing for her for her serv- ices, then you may find for the claimant, and assess her recovery at just such sum as a fair preponderance of the evidence shows it to have been worth for the last years of such service.' (5) The court instructs the jury that, in order to entitle the plaintiff to recover for any services rendered by him to the said C. L. S., they must find that there was a design on the part of the plaintiff at the time of the rendition of the services to charge, and an expectation on the. part of the said C. L. S. to pay, for said services.* (6) The court instructs the jury that the fact that the plaintiff was a nephew of the deceased husband of C. L. S., if the jury so find, does not make him a member of her family ; and if the jury shall find that, not being a member of her family, the plaintiff rendered useful and valuable personal services to and for the benefit of said C. L. S. during her lifetime, the fact of rendering such services furnishes prima facie evidence of their acceptance by said C. L. S., and, in the absence of proof to the contrary of any express contract, raises an obligation to pay what they were worth; and, if the jury shall find that such payment has not been made, they shall find for the plaintiff in such a sum, provided they shall find that the defendant is the administrator of said C. L. S." (7) The court instructs the jury that if you find that the plain- tiff rendered valuable personal services to and for the, benefit of the late C. L. S. during her lifetime, at her request, and shall further find that said C. L. S., in consideration of said services, promised to reward the plaintiff for said services, and did not perform said promise, then the jury shall find for the plaintiff against the administrator of said C. L. S. for the value of said services according to the proof in the case, provided the jury shall find that said promise was made to take effect within years prior to the institution of this suit.^" 'Boyd V. Starbuck, 18 Ind. App. 'Gill v. Staylor, 93 Md. 453, 49 310, 47 N. E. 1079. For other instruc- Atl. 650. tions on claims against estates, see "Gill v. Staylor, 93 Md. 453, 49 Stanley v. Pence, 160 Ind. 636, 67 N. Atl. 650. E. 441 ; Gill V. Staylor, 93 Md. 453, " Gill v. Staylor, 93 Md. 453, 49 49 Atl. 650. Atl. 650. 525 decedents' estates. § 465 (8) The court instructs the jury that if the plaintiffs rendered the services disclosed in the evidence without any agreement with the defendant's intestate, then they are entitled to recover only such sum as the services were actually worth/^ (9) The court instructs the jury that if claimant rendered to S. J. any valuable services which the said S. J. received and ap- propriated, the law implies a promise to pay for the said services what the same is reasonably worth. Moral obligations have noth- ing to do with this case. The plaintiff must prove a legal obliga- tion of the defendant, otherwise, there would be no cause of ac- tion, and you would find for the defendant. You can not find anything for the plaintiff, unless you find from the testimony in this case that a contract existed between the plaintiff and S. J., or that valuable services were rendered — that is, were rendered and accepted by her. That means a contract is an agreement whereby one person and another engages to do or not to do a given thing. Where there is a spontaneous service, as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, then no promise would be implied. The contract connected with that would not be established. An agree- ment to compensate can not be implied from the mere fact that services were rendered. They must be rendered and accepted, and they must be known to have been rendered with the expectation of pay. The simple fact that services were rendered, does not raise a liability on the part of a person for whom they are ren- dered even though done at the request, if the circumstances are such as to rebut the inference that compensation is to be made.^^ (10) The court instructs the jury that, where services are rendered, a contract or obligation to pay will be presumed, but a presumption may arise from the relationship of the parties that the services rendered are acts of gratuitous kindness, and in this case it is a question for the jury, taking into consideration all of the circumstances, including the nature of the degree of relation- ship of the plaintiff to the deceased, H. M. V., and their circum- stances in Hfe, to determine whether there was an implied con- " Chandler v. Baker, 191 Mass. S79, "Beecham v. Johnson (Mich.), 125 78 N. E. 387. N. W. 702. § 466 INSTRUCTIONS FORMS. S26 tract for compensation or not ; and if you find from the evidence that the plaintiff rendered services to the deceased, H. M. V., in attending to his business in and about his place near the city of M. L., in the county of J. and state of M., and that it was under- stood between them that the plaintiff should receive pay for such services to said H. M. V., then you will find the issues on the first count of the petition herein for the plaintiff, and allow her in your verdict such sum as you may believe from the evidence in this case she is entitled to, not exceeding the sum of dollars a , with interest thereon at the rate of per cent. per annum from the day of , the date of her filing of her petition herein/^ (11) The court instructs the jury that if you find the issues on the first count in the plaintiff's petition, under the last fore- going instruction, for the plaintiff, in ascertaining what compen- sation you will allow her you must confine yourselves to compen- sation for such services as you may believe the plaintiff to have rendered for the deceased, H. M. V., between the — -— day of , and the day of , and allow her for such services as you may believe to have been rendered a sum not exceeding dollars a .^* (12) The court i^structs the jury that under the pleadings in this case it is admitted that the only compensation received by the plaintiff from the deceased, H. M. V., for such services, if any you may find from the evidence were rendered by the plain- tiff for such deceased, H. M. V., was her board and clothing, and the defendant is bound by such admission.^** § 466. Sufficiency of evidence to establish claim. — (1) The court instructs the jury that there are two certain affirmative allegations in the answer which the reply denies, and here the burden of proof is upon the defendants, though as the case reaches you, I think you will scarcely get beyond -the allegations of the complaint and denials of the answer. There is this to be " Sprague v. Sea, 152 Mo. 327, S3 " Sprague v. Sea, 152 Mo. 327, 53 S, W. 1074. S. W. 1074. "Sprague v. Sea, 152 Mo. 327, 53 S. W. 1074. 527 decedents' estates. § 466 said in that aspect of the case: If F. took the note merely as B.'s agent, and without intention on her part to rehnquish control of them in his hands, there was of course no delivery of this, and no such surrender of it by B. as to perfect its validity as a bind- ing legal obligation to pay its face amount to the plaintiff. It might still, however, in connection with other evidence as to its underlying character and purpose, be sufficient to establish such an agreement between the parties as to support an action here for any unpaid balance for Miss F.'s services, should you find that it was believed and understood that she was insufficiently com- pensated, and that this act of B.'s was intended as a guaranty by her that any such deficiency should be made good from her estate. Should such a possible conclusion be reached by you, it would be your duty to determine, if the evidence should war- rant such a computation, what, if anything, remains honestly due to the plaintiff for her services. ^° (2) The court instructs the jury that, while the claimant B. is a competent witness in this action, he can not prevail unless he proves his case by some competent or satisfactory evidence other than the testimony of himself. His testimony may be used to corroborate other evidence in the case, but it is not sufficient in itself to establish his claim.^^ "Fenton v. Mansfield, 82 Conn. Sprague v. Sea, 152 Mo. 327, 53 S. 343, 73 Atl. 770. W. 1074; Stanley v. Pence, 160 Ind. "Bull V. Payne, 47 Ore. 580, 84 636, 67 N. E. 441; Chandler v. Ba- Pac. 697. Claims against estates, see ker, 191 Mass. 579, 78 N.' E. 387. CHAPTER XLIV. DEEDS. Section Section 467. Execution of deed. 469. Mental capacity to execute. 468. Necessity of delivery. 470. Breach of covenant of warranty. §467. Execution of deed. — (1) The court instructs the jury that the defendants have read in evidence a deed purporting to be executed by I. C. and plaintiff, E. J. C, conveying said real estate to the defendant W. C. The burden of proving that the plaintiff executed said deed is upon the defendants, and if the defendants have not proved by a preponderance of all the evi- dence in the cause that said plaintiff did sign her name to said deed, the plaintiff is entitled to a verdict in her favor, no matter how innocent the defendants may have been in their purchase. If, however, you find that E. J. C. did sign her name to said deed then your verdict must be for the defendants, whether the deed bears the true date of its execution or not; and this must be your verdict, though the plaintiff, when she signed said deed, believed it to be a mortgage. You will then see that an important point in controversy is as to whether the plaintiff signed said deed, and this you will determine, as well as all other facts sub- mitted to you, from a careful consideration of all the testimony and circumstances in evidence, for you are the exclusive judges of the evidence and the credibility of the witnesses, and deter- mine from the evidence what it proves and what it does not prove.^ (2) The court instructs the jury that a deed is not considered executed, and the courts will not enforce the same, when the maker has not gone so far with its execution that he can not re- call or control it; and if the jury shall find from the evidence that ' Carver v. Carver, 97 Ind. 497. 528 529 DEEDS. § 468 the maker, W. R. T., could control and recall said deed, they will answer the issue, "No."^ § 468. Necessity of delivery. — ( 1 ) The court instructs the jury that the sole question for you to determine is, did P. deliver to S. the deed from him to B. conveying the land, the subject- matter of this suit, about the time he signed the same, and did he intend to surrender all control over it, and that the deed should be delivered by S. to B. ? If such is found to be the fact, then your verdict should be for the plaintiff; if not, for the de- fendant. If you believe from the evidence that there was a trade between P. and B., in which B. was to do certain things and P. was to make a deed for the lots in question, and if you further believe from the evidence that all the conditions in the trade on B.'s part were performed by him, then I leave it to you to say whether or not these facts show an intention by P. to de- liver said deed to B. when he left it with Mr. S.^ (2) The court instructs the jury that a deed may be written, signed, acknowledged and certified and still be inoperative for want of delivery, for delivery is an incident essential to the exe- cution of a deed. The question of delivery is always one of the intention of the parties. If the deed passes into the hands of the grantee, without the intention on the part of the grantor that it should become operative and be used for the purpose intended, it is not a delivery.* (3) The court instructs the jury that a deed takes effect from its delivery, and, until the maker parts with its possession and yields up his right to control it, the deed has no legal existence and no other person can gain any rights under it.^ (4) The court instructs the jury that a deed is only operative from the time of actual delivery ; and if the jury shall find from the evidence that there was no actual delivery of said deed until after the death of the maker, W. R. T., said delivery can not defeat the right of the widow to dower in said land, and they will answer the issue, "No."" 'Tarlton v. Griggs, 131 N. Car. 'Fitzgerald v. Goff, 99 Ind. 28. 216, 42 S. E. S9I. ' Fitzgerald v. Goff, 99 Ind. 28. 'Fitzpatrick v. Brigman, 133 Ala. "Tarlton v. Griggs, 131 N. Car. 242, 31 So. 940. 216, 42 S. E. 591. 34 — Bkanson's Inst. § 469 INSTRUCTIONS FORMS. S30 §469. Mental capacity to execute. — The court instructs the jury that there are two allegations in the bill, either of which, if true, would authorize you to find the issues presented to you for complainant. First — Was the complainant in such condition mentally at the time of signing the deed and contract in evidence as not to understand the nature and result of the act she was per- forming? Second — If she did understand the nature and result of her acts, did A. J. H. falsely and fraudulently represent the condition of her husband's estate to her at the time, as alleged in the bill, and did she thereby, relying on such statements, sign such deed and contract, when she would not have done so had she known the true condition of such estate? If you find that she did not understand the nature of her act when signing the deed and contract in evidence, because of her mental condition, then you should find both of the issues submitted to you in the afifirma- tive. If you find that she did understand the nature and result of her act when signing the deed and contract in evidence, but find she signed the same because of false representations made to her by A. J. H., as alleged in the bill, then you should find both of the issues submitted to you in the affirmative.'' §470. Breach of covenant of warranty. — The court in- structs the jury that the deed of conveyance introduced in evi- dence is a warranty deed, and covenants on its face that the prop- erty is free from encumbrances, except the encumbrances therein named, and if the plaintiff has been compelled to and has paid any sum not exceeding the amount of the encumbrance, interest '"The criticism upon this instruc- tained, the allegation of the bill that tion is that it submits to the jury is- said instruments were improperly sues different from those which they and wrongfully obtained is made out, were impaneled to try. This is clear- and that in such case the verdict ly a misapprehension. It merely calls of the jury should be for the com- the attention of the jury to each of plainant on both issues. This was in the two substantive grounds of relief no sense a substitution of new issues, set up in the bill and upon which it but an instruction properly informing is claimed that the instruments the jury as to what facts must be which the bill seeks to have canceled found to entitle the complainant to a were improperly and wrongfully ob- verdict upon the issues already sub- tained. It then instructs the jury mitted." Hoobler v. Hoobler, 128 that if either of these grounds is sus- 111. 645, 21 N. E. 571. 531 DEEDS. § 470 and costs, to clear ofif an encumbrance not named in the deed, as charged in the complaint, he has the right to recover such sum in this action, with interest from the time of payment at the rate of six per cent, per annum, unless as part of the consideration of said deed the plaintiff agreed to take said deed subject to such encumbrance.' 'Morehouse v. Heath, 99 Ind. 509. CHAPTER XLV. DRAM SHOPS CIVIL DAMAGE LAWS. Section Section 471. Injury to person, property or 477. Not essential that injuries in- means of support. flicted by drunken person 472. Liability where sales made by should be maliciously in- different sellers. flicted. 473. Amount of liquor sold. 478. Notice to dealer forbidding sales 474. Sales to intoxicated persons. to drunkard. 475. Sales to habitual drunkards. 479. Proof of time of sale. 476. Necessity that intoxicants should 480. Burden of proof. 'be proximate cause of injuries 481. Damages, complained of. 482. Damages — Expectancy tables. 483. Damages — Exemplary damages. § 471. Injury to person, property or means of support. — ( I ) The court instructs the jury that the plaintiff has not, under the evidence in this case, proven such a state of facts as shows that she has sustained any injury to her person, property, or means of support in consequence of the sale of any liquor to her husband by the defendants. Therefore she can not recover for any of those elements in this action.^ (2) The court instructs the jury that as the wiie and children of the said M. K. the plaintiffs are legally entitled to support from him, and that under the laws of this state, if, by reason of intoxication or intemperance in the use of intoxicating liquor on the part of the said M. K., the plaintiffs have been injured in their means of support to the extent of such injury, to be ascer- tained from the evidence, they are entitled to compensation in damages from the person or persons who sold or gave to him the intoxicating liquors which in whole or in part caused such intoxication or caused or fostered such intemperance.^ ' Manzer v. Phillips, 139 Mich. 61, " Gorey v. Kelley, 64 Nebr. 60S, 90 102 N. W. 292. N. W. 554. 533 DRAM SHOPS. § 472 (3) The court instructs the jury that if you find from the evidence in this case that the intoxication of (name of per- son killed by train) was such as to deprive him of the normal use of his faculties, either physical or mental, so that he was ren- dered incapable of caring for himself and of protecting himself from the results of accidents or circumstances to* which he was subjected, and that by reason of such deprivation of his normal powers of body or mind, his death was produced by his inability to protect or defend himself, then you are instructed that such intoxication is to be deemed and taken as the cause of his death.^ § 472. Liability where sales made by different sellers. — ( I ) The court instructs the jury that this suit is brought against the various defendants severally, and that the suit against each is a separate suit, and that your verdict must be based upon a preponderance of the evidence; but you can find the defendants all guilty or all not guilty, or find some of them guilty and some not guilty, as the evidence may show.* (2) The court instructs the jury that this action is brought against two separate dealers in intoxicating liquors and their respective bondsmen, not because it is claimed that such dealers are or were associated together in business, but upon the ground that each sold intoxicants to D. M., the husband of the plaintiff, that helped to produce the intoxication it is claimed he was labor- ing under at the time he received the injuries that resulted in his death. You can not lawfully render a judgrhent against all of these parties unless you find that the deceased had received in- toxicating liquor from both W. and D., and that the liquors so received were contributing to the intoxication that he was labor- ing under at the time he received his injury. If you are satisfied, under the evidence and the law as given you by the court, that these parties did either of them sell — furnish — M. the liquors, and that the sale or furnishing contributed to the death of this man, then give the plaintiff such a judgment as you think she is ^ 'It was objected that this instruc- Houston, 45 Nebr. 813, 64 N. W. 245. tion assumed the intoxication of the * Instruction inartificially drawn decedent. It was held otherwise, but not misleading, see Earp v. Lilly, however, as there was no conflict in 217 III. 582, 75 N. E. 552. the evidence on this point. Gran v. I 473 INSTRUCTIONS FORMS. 534 entitled to. If, on the other hand, you find that they, or either of them, did not sell or furnish him the liquor, then, no matter how unfortunate she may have been, she has no claim upon them for a judgment in this case." §473. Amount of liquor sold. — The court instructs the jury that there has been something said in this case about the amount of liquor sold by the defendant. Now, the question is not so much as to the amount, but did what he did sell him con- tribute to the drunkenness of the deceased? Or, in other words, did the liquor which the defendant T. sold him contribute to the intoxication of M. on the day of ? If it did not, if he sold him a drink in the forepart of the day, and that did not in any way contribute to the intoxication of Mr. M., then, of course, the defendants would not be liable ; but, if the liquor T. sold him upon that day in any way contributed to the intoxica- tion of M., it makes no difference how many others sold." § 474. Sales to intoxicated persons. — The court instructs the jury that I want to say a word to you in reference to what may be deemed "intoxicated person", within the meaning of the statute. When it is apparent that a person is under the influence of liquor, or when his manner is unusual or abnormal, and his inebriated condition is reflected in his walk or conversation, when his ordinary judgment and common sense are disturbed, or his usual will power is temporarily suspended, when these or similar symptoms result from the use of liquors, and are mani- fest, then, within the meaning of the statute, the person is in- toxicated, and any one who makes a sale of liquor to such per- son violates the law of the state. It is not necessary that the person should be so-called "dead drunk", or hopelessly intoxi- cated ; it is enough that his senses are obviously destroyed or dis- tracted by the use of intoxicating liquors.' "Moreland v. Durocher, 121 Mich. 'Lafler v. Fisher, 121 Mich. 60, 79 398, 80 N. W. 284. ' N. W. 934. "Merrill v. Tinkler, 160 Mich, 575, 125 N. W. 717. 535 DRAM SHOPS. . §475 §475. Sales to habitual drunkards. — (1) The court in- structs the jury that if you find from the evidence that, at the time charged in the plaintiff's petition, the husband of plaintiff, the said H. F., was an habitual drunkard, and that while he was such habitual drunkard, and after the day of , and within the time charged in plaintiff's petition, the defendant, H. B., did sell or give, or permit to be sold or given, to the said H. F., at the defendant's place of business in W., C. county, any spirituous, vinous, or malt liquor, or medicated bitters capable of producing intoxication, you will find for the plaintiff $ for each separate time that the said defendant so sold or gave, or permitted to be sold or given, any of such intoxicants to the said F., unless you further find from the evidence that, when he sold or gave, or permitted to be sold or given, such intoxicants to the said F., the sale or gift was made in good faith, with the beHef that said F. was not an habitual drunkard, and there was good reason for such belief, then upon this branch of the case you will find for the defendants. As the times alleged in the plaintiff's petition, alleging sales, gifts, etc., to F., as an habitual drunkard, and such sales, gifts, etc., after service of notice not to sell, are identical, if you find for the plaintiff under the charge thus far given you, then you need not consider the following paragraph, but if you find for the defendants, under the charge thus far given, then you will consider the next succeeding para- graph.^ (2) The court instructs the jury that if you fail to find that the said F. was an habitual drunkard, as charged at the time of the alleged sales or gifts of intoxicants, you will find for the de- fendants on this branch of the case ; or if you find that he was then an habitual drunkard, but that such sales or gifts were made in good faith, with the belief that the said F. was not an habitual drunkard, and that there was good reason for such be- lief, you will find for the defendants on this branch of the case. And so, if you also fail to find that sales or gifts of intoxicants were made to the said F. between the dates of the service of the 'Birkman v. Fahrenthold, 52 Tex. Civ. App. 33S, 114 S. W. 428. § 476 • INSTRUCTIONS FORMS. 536 notice not to sell and the revocation thereof (if there was such revocation) you w^ill find for the defendants.* § 476. Necessity that intoxicants should be proximate cause o£ injuries complained of. — (1) The court instructs the jury that, even if you should believe from the evidence that the said S. W. was intoxicated at the time the said wounds were in- flicted on T. S., yet if you further so believe that said S. assaulted said W., and that wounds in question were inflicted in meeting or repelling said assault, then in such case it would be your duty to find the defendants [sureties on liquor dealers' bond] not guilty.'" (2) The court instructs the jury that even though you may believe from the evidence that the deceased, J. P. M., procured intoxicating liquor from the defendant, A., and that he be- came intoxicated therefrom, still if you further believe from the facts and circumstances in evidence in this case that he came to his death by reason of the wilful or criminal act of some per- son or persons unknown, which act was not provoked by said J. P. M., and that such wilful or criminal act, and not his intoxica- tion, was the effective cause of his death, then you should find the defendants not guilty.^' (3) The court instructs the jury that if you believe from the (evidence that J. P. M. came to his death by suffocation and that the cause of such suffocation is not shown by the evidence, then you will find the defendants not guilty.'^ § 477. Not essential that injuries inflicted by drunken per- son should be maliciously inflicted. — The court instructs the jury that it is not material whether the injuries inflicted by S. on the plaintiff were inflicted with a malicious intent to do him harm, or were inflicted by the said S. upon the plaintiff in a friendly scuffle or wrestle, imposed upon the plaintiff, by the said S., in drunken sport. The essential thing is that the injury must have occurred and resulted from the drunken condition of •Birktnan v. Fahrenthold, 52 Tex. "Triggs v. Mclntyre, 215 111. 369, CiT. App. 335, 114 S. W. 428. 74 N. E. 400. "Reisch v. People, 229 III. 574, 82 "Triggs v. Mclntyre, 215 111. 369, N. E. 321. 74 N. E. 400. 537 DRAM SHOPS. § 479 S. and the drunken condition was contributed to by liquors sold S. by the defendant M. at his licensed saloon. If you find all these facts established, by the preponderance of the evidence, then plaintiff is entitled to a verdict in his favor.^^ § 478. Notice to dealer forbidding sales to drunkard. — The court instructs the juiy that if you find from the evidence that, after the notice not to sell was served upon the defendant B., and after the day of , and within the time charged in plaintiff's petition, the said B. sold or gave, or permitted to be sold or given, to the said H. F. any of said intoxicants, then you will find for the plaintiff the sum of $ for each separate time the said B. sold or gave, or permitted to be sold or given, to the said F. any such intoxicant at B.'s place of business at W., as charged in plaintiff's petition. But if you find that after the notice not to sell, such notice was revoked by the plaintiff, and B. was informed of such revocation, then you are instructed that, unless you find that sales or gifts were made, or permitted to be sold or given, of such intoxicants by the said B. to the said F. between the time of the service of the notice not to sell and the time the said B. received notice of the revocation thereof, you will find for the defendants on this branch of the case, regardless of whether such revocation was made by the plaintiff under duress on the part of the husband or not.^* §479. Proof of time of sale. — (1) The court instructs the jury that in order to entitle the plaintiff to recover it was not necessary that the plaintiff should prove that the sales were made on the particular days set out in the declaration; that in order to recover under the counts covering a period of time the plaintiffs must show a sale within the period named; but that under the counts where particular days were set out, the plain- tiff might recover for injuries which she suffered by reason of a sale made on any day not used as a basis for recovery under any other count.^^ " Howard v. McCabe, 79 Nebr. 42, • " Sackett v. Ruder, 1S2 Mass. 397, 112 N. W. 305. 25 N. E. 736, 9 L. R. A. 391. "Birkman v. Fahrenthold, 52 Tex. Civ. App. 335, 114 S. W. 428. § 480 INSTRUCTIONS FORMS. 538 (2) The court instructs the jury that it would be true that this defendant could not be held responsible for damages or in- jury which she may have suffered by reason of the sales of in- toxicating liquor to her husband at a time before he had any- thing to do with it, — that is, I mean, prior to the year , when Mr. C. went into the business; but if he did sell liquor after that time, from which the plaintiff suffered injury, even though he may have been, at the time when he began the sale of liquor to him, a man who had suffered much from drink, or she may have suffered much by reason of the fact that he had been a hard drinker, still that would not relieve the defendant from re- sponsibility for such damages as she may have suffered by rea- son of his action, under the instructions I have given you. Of course, the plaintiff can not recover for any injury to which the defendant did not contribute by the sale of intoxicating liquors which he did not either sell or contribute to.^* (3) The court instructs the jury that the plaintiff is not con- fined to the specific dates of sale alleged in her petition, but that, if the evidence shows any sales made between the time defend- ant gave his bond, to wit, , 19 — , and the time this suit was filed, such evidence, if you find it to be true, would prove the dates sufficiently.^' §480. Burden of proof. — (1) The court instructs the jury that, unless from a consideration of all the evidence it is shown by a preponderance of all the evidence that the effective cause of the death of J. P. M. was by reason of drinking intoxicating liquor, your verdict should be not guilty.^^ (2) The court instructs the jury that it is incumbent on the plaintiff to show that the defendant, either by himself or his employes or agents, gave or sold the plaintiff's father intoxicating liquors.^® (3) The court instructs the jury that while the burden of proof is upon the plaintiff to establish her case by a preponder- "Ford V. Cheever, lOS Mich. 679, "Triggs v. Mclntyre, 215 111. 369, 63 N. W. 975. 74 N. E. 400. "Birkman v. Fahrenthold, 52 Tex. " ShuU v. Arie, 113 Iowa 170, 84 N. Civ. App. 335, 114 S. W. 428. W. 1031. 539 DRAM SHOPS. § 481 ance of the evidence, yet if this has been done in accordance with the allegations of her petition, where the defendants rely upon affirmative matter as defense, then the burden is upon the de- fendants to establish such defense by a preponderance of the evidence. Thus, if the plaintiff has established, by a preponder- ance of the evidence, that sales or gifts of intoxicants were made to the said F. as alleged, and that when such sales or gifts were made the said F. was an habitual drunkard, then the burden would be upon defendants to show that, when such sales or gifts were made, they were made in good faith, with the belief that F. was not an habitual drunkard, and there was good reason for such belief. And so, if such sales or gifts were made, as al- leged, to the said F. after notice was served upon B. not to sell to him, then the burden is upon the defendants to show, by a preponderance of the evidence, that at the time of such sales or gifts the notice not to sell had been revoked, and that such revocation had been made known to B.^" §481. Damages. — (1) The court instructs the jury that there must be only one allowance of damages for one sale, and only one sale allowed for under any count.^^ (2) The court instructs the jury that you must notice that un- der the counts for loitering, as under the counts for sales, you are only to allow damages for a particular occasion, some partic- ular occasion proved other than the occasion when sales are made.^^ (3) The court instructs the jury that if, under the evidence, you find that the claimant is entitled to a verdict, she will be en- titled to recover such actual damages as by the evidence it ap- pears she is suffering by reason of the death and loss of her brothers, resulting, if it did, in her loss of support, and no other damages whatever. In estimating these damages you should consider simply the amount of loss of her means of support, and award to the claimant such sum as you find will fairly compen- sate for her loss in that regard from the time of their death and " Birkman v. Fahrenthold, 52 Tex. " Sackett v. Ruder, 152 Mass. 397, Civ. App. 335, 114 S. W. 428. 25 N. E. 736, 9 L. R. A. 391. ''Sackett v. Ruder, 152 Mass. 397, 25 N. E. 736, 9 L. R. A. 391. § 481 INSTRUCTIONS FORMS. '54O for such a length of time thereafter as you may find her ex- pectancy of hfe to be, taking into consideration the amount these boys would earn during her expectancy, and their ex- pectancy, and have furnished, under the proofs in this case, con- sidering the chances of the boys' death and possible loss of work, and everything else relating thereto.^' (4) The court instructs the jury that if you find the claimant entitled to recover anything whatsoever, that you can not allow anything whatever because of the manner in which these boys were killed, or on account of the way their bodies were injured. This suit is only for actual damages, and not for anything else, not for mental suffering, shame, mortification, or anything else but actual money loss under the contract alleged in this declara- tion or claim of the plaintiff in this case. How much has she lost in her means of support under this contract, if you find one existed ?^* (5) The court instructs the jury that if, under the evidence and instructions that I have given you, you find that the plain- tiff is entitled to a verdict, she will be entitled to recover such damages as by the evidence it appears that she has suffered by reason of the death and loss of her husband. In estimating these damages, you should consider the loss of her means of support, her mental suffering, and the loss of her husband's society and companionship, so far as the same may have been established by the evidence, and award to the plaintiff such a sum as, in your sound judgment and discretion, you find will be a fair compen- sation for her loss and injuries.^' (6) The court instructs the jury that in determining the amount of such damages you are at liberty to consider the habits, health, and estate of said M. K. on and prior to , 19 — , the profits of his labor or occupation, the income from his property, if any, and the condition of his said family at such time so far as such facts may appear from the evidence given in the case.^'' '^ Bennett v. Miller, 160 Mich. 309, " Lafler v. Fisher, 121 Mich. 60, 79 125 N. W. 2. N. W. 934. =* Bennett v. Miller, 160 Mich. 309, '" Gorey v. Kelley, 64 Neb. 60S, 90 12s N. W. 2. N. W. 554. 541 DRAM SHOPS. § 483 (7) The court instructs the jury that in arriving at your ver- dict as to the amount of plaintiff's damages, in case you find she is entitled to recover, you have the right, and it is your duty, to ascertain and determine how much damage she will suffer in the future by reason of injury to her property and means of sup- port by reason of any effects of said injury to said S. [husband] that you may find was occasioned by his said intoxication and for such time in the future as you may determine that he will suffer from and be disabled by such injury.^^ § 482. Damages — Expectancy tables. — The court instructs the jury that if you further find from the evidence that, prior to the wrongs complained of in plaintiff's petition, plaintiff's hus- band was a strong robust man, but that after said wrongs plain- tiff's husband was permanently impaired in his earning capacity, then in determining the damages to be allowed plaintiff you may take into consideration the tables of expectancy which have been introduced in evidence.^* § 483. Damages — Exemplary damages. — The court in- structs the jury that something has been said, I think, upon the subject of exemplary damages. I do not think any damages should be allowed in the nature of mere punishment to the de- fendants. If any damages beyond actual damages are allowed, they should be based upon the idea of an aggravated injury to the feelings and sense of wrong to the plaintiff by reason of hav- ing sold these liquors to Mr. L. when he was intoxicated. No "' The defendants urge that this in- tiff and her husband. They have a struction "is erroneous because of history of the husband's physical con- the fact that the mortality tables were dition and habits, and they have the not introduced, and therefore there benefit of an actual observation of was no evidence in the case from both the plaintiff and her husband, which the jury could determine the Upon these facts and this observa- amount of future damages. The tion the jury may base their finding." mortality tables are not conclusive Spencer v. Johnson (Mich.), 142 N. evidence upon the question of the W. S82. duration of life. Without them the ''^ Acken v. Tinglehoff, 83 Nebr. 296, jury still have other facts in the case. 119 N. W. 456. They have the age both of the plain- § 483 INSTRUCTIONS FORMS. 542 mere captious or punitory damages should be allowed, and, if any exemplary damages are allowed by you, they should be fixed and arrived at by the exercise of a careful discretion and dis- crimination."* "Lafler v. Fisher, 121 Mich. 60, 79 N. W. 934. CHAPTER XLVI. DRUGGISTS. Section Section 484. Negligence in filling order. 486. Criminal liability for sale of dan- 485. Damages for negligent filling of gerous drug. order. § 484. Negligence in filling order. — (1) The court instructs the jury that if they believe from the evidence that on or about , , the plaintiff sent his son to the drug store of the defendant to procure arnica; that said son asked the defendant for arnica, and the defendant sold and delivered to him car- bolic acid instead of arnica ; and if you believe from the evidence that, in so selling the plaintiff carbolic acid, the defendant failed to use ordinary care, as defined in instruction No. then you will find your verdict in favor of the plaintiff, if you find that the plaintiff and his agent exercised ordinary care at the time.^ (2) The court instructs the jury that, if you believe from the evidence that defendant exercised ordinary care in filling plain- tiff's order, that then plaintiff can not recover.' (3) The court instructs the jury that, if you believe from the evidence that the boy asked the defendant for carbolic acid, that then the plaintiff can not recover, and your verdict must be for the defendant.^ (4) The court instructs the jury that, in considering its verdict, the jury must not be governed by sympathy for plaintiff because he met with an injury, nor have any* prejudice or feeling either for or against plaintiff or defendant, but the jury should, in ar- riving at its verdict, be governed solely by the evidence in the 'Peterson v. Westman, 103 Mo. 'Peterson v. Westman, 103 Mo. App. (>12, 77 S. W. lOlS. App. 672, 77 S. W. 1015. 'Peterson v. Westman, 103 Mo. App. 672, 77 S. W. lOlS. 543 § 485 INSTRUCTIONS— FORMS. 544 case and the instructions of the court. And the court further instructs the jury that the burden of proof is upon the plaintiff to show by a preponderance of the evidence (that is, by evidence which is, in your opinion, entitled to greater weight than that offered by the defendant) that the plaintiff was guilty of the neg- ligence alleged.* § 485. Damages for negligent filling of order. — ^The court instructs the jury that if they find for plaintiff, they should assess his damages at such sum as they may find from the evidence will be a fair compensation to him, first, for any pain of body or mind caused by the loss of the first joint of the middle finger of his right hand, and directly caused by such injury; second, for any loss of earnings resulting directly from said in- jury; third, for any loss necessarily incurred for medicines and medical attention — not to exceed the sum of $ , the amount sued for.^ § 486. Criminal liability for sale of dangerous drug. — The court instructs the jury that you shall find the accused guilty if you find the state has shown, beyond a reasonable doubt, that the defendant sold morphine named in the indictment or special pre- sentment, whatever it is." * Peterson v. Westman, 103 Mo. "Oppenheim v. State (Ga. App.), App. 672, 77 S. W. 1015. 11 S. E. 652. ° Peterson v. Westman, 103 Mo. App. 672, n S. W. 1015. CHAPTER XLVII. EASEMENTS. Section Section 487. Dedication — Obstruction. 488. Abandonment of easement. § 487. Dedication — Obstruction. — ^The court instructs the jury that the plaintiff having declared in this action that the lane in question was dedicated to the mutual use and benefit of both plaintiff and defendant, which is admitted by the defendant as true, and if the jury believes that P. or the parties under whom he claims interrupted the defendant in the use of it, and con- tinued such interruption by placing the fence in question in the road, and refused to remove it when requested, before Mr. B. placed any obstructions in the road, the plaintiff can not recover, if such interruption was a material and substantial interruption. If it was but a slight obstruction, not materially and substantially interrupting or obstructing the defendant in the use of the lane, I can not charge you that the plaintiff can not recover.^ §488. Abandonment of easement. — (1) The court in- structs the jury that while, under the law, there can not be an abandonment without an existing intent to abandon, yet you are the sole judges, from the evidence, whether there was such intent on the part of the defendant. In reaching a conclusion either way upon the question, you should carefully consider all the evidence and all the facts and circumstances shown by the . evidence.^ (2) The court instructs the jury that, to accomplish an aban- donment [of an easement] the facts or circumstances must clearly indicate such an intention. Abandonment is a question of inten- ' Bellas V. Pardoe (Pa.), IS Atl. 'Chicago &c. R. Co. v. Clapp, 201 66S. 111. 418, 66 N. E. 223. 545 35 — Branson's Inst. § 488 INSTRUCTIONS FORMS. 546 tion. Non-user is a fact in determining it, but is not, even for twenty years, conclusive evidence in itself of an abandon- ment. Its Mreight must depend upon the intention to be drawn from its duration, character and accompanying circumstances.' ■Armstrong v. Lehigh &c. R. Co., 82 N. J. L. 704, 82 Atl. 899. CHAPTER XLVIII. ELECTRICITY. Section Section 489. General duty arising from dan- 493. Liability where defective wiring gerous nature. installed by another than de- 490. Negligent insulation. fendant. 491. Injuries from fallen or dangling 494. Contributory negligence of in- wires. jured person. 492. Injuries from lightning con- ducted over wires. § 489. General duty arising from dangerous nature. — (1) The court instructs the jury that it is the duty of an electric light company to exercise ordinary care and diligence in constructing and maintaining its poles and wires, and, if it fails to exercise such care and diligence in constructing and maintaining the same as a person of ordinary prudence would do under the same or similar circumstances, and injury thereby results, the same would be negligence and it would be liable.^ (2) The court instructs the jury that the defendant, W. H., in breaking, coiling, and hanging the dead or uncharged wire on , 19 — , is presumed to have known that it was an electric wire, and to have known and realized the dangerous properties of electricity, and that a higher degree of care was necessary when a thing on account of which an injury may be caused was a highly dangerous one, and that dead electric wires may be en- livened or become charged with a current of electricity by coming in contact with a charged wire, and that in case any person touched or grasped such a wire it would, or might reasonably be expected to, endanger the life or limbs of any person touching it." §490. Negligent insulation. — (1) The court instructs the jury that it was the duty of the defendant to so insulate or pro- " Temple Elec. Light Co. v. Halli- 'Nagle v. Hake, 123 Wis. 256, 101 burton, 104 Tex. 493, 136 S. W. 584. N. W. 409. 547 § 49° INSTRUCTIONS FORMS. 548 tect the wire in question as to make it reasonably safe to those who may be brought in contact with it, and if they should find that the deceased, B. G., came in contact with said wire of the defendant; and if you find that defendant failed to so insulate or protect the said wire as to make it reasonably safe to those who may be brought in contact with it ; and if you further find that by reason of the failure, if any, to insulate said wire, the said deceased received an electric shock, without any negligence on his part; and if you further find that by reason of such shock, if any, the said deceased lost consciousness, and fell to the ground below and was injured ; and if you find that he died as the^direct result of such injuries, if any — then you will find a verdict for the plaintiff.^ (2) The court instructs the jury that if they believe from the evidence that the said wire at the place where deceased was standing at the time he received his injuries, if any, had all the appearances of having been properly insulated, that this was then an invitation or inducement to said deceased to risk the conse- quences of contact with the same in the performance of his work in lowering the sign in question.* (3) The court instructs the jury that if they find from the evidence that on the day of , the deceased, B. G., was, in the line of his duty as a laborer or sign hanger, engaged in removing a sign at premises No. street, in the city of St. L. ; and if you further find that while so engaged, and without fault or negligence on his part, the wires with which said sign had been attached, if any, came in contact with the wires of defend- ant through which an electric current was then passing; and if you further find that the insulation, if any, on said wire, had become out of repair and worn off to an extent to expose the electric current, if any, passing through the same; and if you further find that the defendant knew, or by the exercise of or- dinary care on its part could have known, that said insulation, if any, had become out of repair and worn ofif, if you find that it was out of repair and worn off, and that said deceased did not know, or by the exercise of ordinary care could not have dis- ' Geismann v. Missouri Edison * Geismann v. Missouri Edison Elec. Co., 173 Mo. 6S4, 73 S. W. 654. Elec. Co., 173 Mo. 654, 73 S. W. 654. 549 ELECTRICITY. § 492 covered, it ; and if you further find that because of the exposure, if any, of the electric current passing through said wire, the said deceased received an electric shock and lost his consciousness; and if you further find that by reason thereof he was precipitated upon his head to the stone pavement below, and sustained such injuries, if any, that as a direct result thereof he died on the day of following — then you will find a verdict for the plaintiff.^ § 491. Injuries from fallen or dangling wires. — The court instructs the jury that defendant was entitled to a reasonable time after the fall of the wire to repair it, or to remove it out of the way of persons using the street; and, if the jury find that the injury to plaintiff's intestate occurred before the expiration of such a reasonable time, then the plaintiffs are not entitled to recover anything in this action.® § 492. Injuries from lightning conducted over wires. — (1) The court instructs the jury that there are some well-known facts that may be considered in the same way as if they had been testified to. It is a well-known fact, for instance, that lightning in times of storms is frequently discharged from the clouds and passes to the earth, and that metal wires in the air are good con- ductors of electricity, much better than the air, and that elec- tricity discharging from the clouds near such wires is liable and apt to pass on them and along them to the earth, and that if a human body, which is also a good conductor, is in contact with a wire charged with electricity, it will pass through it to the ground ; or if near it, if the charge is strong enough, it is likely to seek it and pass to the ground, the human body being a better conductor than air. Therefore, it is the duty of one engaged in a business which requires the dealing with metal wires to use every reasonable precaution to protect any one likely to come in contact with or near to the same; and so when the defendant [the telephone company] was ordered to remove this telephone, and when it did remove it from the house of the plaintiff, it was "Geismann v. Missouri Edison "Birmingham R. &c. Power Co. v. Elec. Co., 173 Mo. 654, 73 S. W. 654. Jackson (Ala. App.), 63 So. 782. 8 493 INSTRUCTIONS FORMS. 550 its duty to remove the same and leave it in a reasonably safe condition, if it left any part of the wire attached to the house. So an important inquiry is whether the wire was left in a rea- sonably safe condition, or did the defendant leave it in a danger- ous condition.'' (2) The court instructs the jury that it is a matter of common iinowledge with all men that lightning is conducted along such wires as that which ran to the phone and to the pumphouse.* §493. Liability where defective wiring installed by an- other than defendant. — The court instructs the jury that the defendant was not responsible for any accident occurring from defects in the interior wiring or arrangement of lamps if that work was not done by defendant and the defendant had no control over it, unless the defendant was also guilty of negligence in the outside wiring or in its connection with the inside wiring.^ §494. Contributory negligence of injured person. — (1) The court instructs the -jury that though they believe from the evidence that the electric light wires were not perfectly insulated, if they further believe from the evidence that the agents and servants of the C. T. & T. Company handling the wire by which plaintiff [intestate] was killed (if he was so killed), including deceased, knew or had notice of the danger of bringing their wire in contact with the city's wires, and they might by rea- sonable care have avoided such contact, and they negligently brought into such contact, and but for such negligence the plain- tiff [intestate] would not have been killed — if the jury find for ' The above instruction is not a ' Owen v. Portage Tel. Co., 126 comment or charge on the facts, but Wis. 412, 105 N. W. 924. is merely "the statement of facts °The instruction, as requested, generally known." And "what is a omitted the clause, "unless the de- matter of common knowledge to fendant was also guilty of negligence every one else should certainly be in the outside wiring or in its con- matter within the knowledge of a nection with the inside wiring." In court and of which it can take judi- adding this clause, the court commit- cial notice." Starr v. Southern Bell ted no error. Reynolds v. Narragan- Tel. &c. Co., 156 N. Car. 435, 72 S. E. sett Elec. Light. Co., 26 R. I. 457, 59 484. Atl. 393. 551 ELECTRICITY. §494 the plaintiff, they should find against said T. & T. Company alone, and in favor of the other defendants." (2) The court instructs the jury that it was the duty of plain- tiff's deceased son to himself to exercise reasonable care for his own safety, and if you believe under the evidence in this case that he took hold of and attempted to remove the fallen tele- phone wire, and that in doing so he omitted to take such precau- tions as a reasonably prudent boy of his age and experience should have taken, and if the jury believe from the evidence that he knew, or if in the exercise of ordinary care in his voca- tion he would have known, of his liability to injury from de- fendant's wire, and that the wearing of rubber gloves or rubber boots would have lessened his peril, and if the jury believe from the evidence that the wearing of either rubber gloves or rubber boots would have been a reasonable and proper precaution for him to take for his own safety under the circumstances and in his situation, and that, knowing the peril of attempting to remove said wire without either rubber gloves or rubber boots, he took hold of same without such precaution and thereby directly con- tributed to his injury, then the jury will find for the defendant." (3) The court instructs the jury that if they believe from the evidence that plaintiff's husband was a man of ordinary intelli- gence, and experience in putting up and taking down signs in the city of St. L., and knew, or by the exercise of ordinary care would have known, of the danger resulting from contact of uninsulated wire with a defective or noninsulated wire of high electric power, and that defendant's wire was at some point or points not properly insulated, and was in plain sight, and was seen by plaintiff's husband, or that he would have seen it if he had been exercising ordinary care for his own safety, and that he, under those circumstances, negligently allowed an uninsulated wire in his own hands to be drawn across or come in contact with defendant's said wire, then the verdict should be for the de- fendant.^^ "Cumberland Tel. & T. Co. v. "Jeffrey v. Union Elec. &c. Co., Ware, 115 Ky. 581, 24 Ky. L. 2519, 74 171 Mo. App. 29, 153 S. W. 498. S. W. 289. " Geismann v. Missouri Edison Elec. Co., 173 Mo. 654, 73 S. W. 654. § 494 INSTRUCTIONS FORMS. 552 (4) The court instructs the jury that it was the duty. of B. G., plaintiff's deceased husband, to exercise ordinary care upon his own part to avoid injury from any wire he was handling com- ing into contact with defendant's wire, and if the jury believe from the evidence that he knew, or if in the exercise of ordinary ■ care in his vocation he would have known, his liability to injury from defendant's wire, and that the wearing of rubber coat, boots, and gloves, or either of them, would have lessened his peril; and if the jury believe from the evidence that the wearing of some or all of these articles would have been a reasonable and proper precaution for him to take for his own safety under the circumstances, and in his situation as sign hanger, and that the failure by said G. to wear some or all of those articles directly contributed to his injury — ^then the jury will find for the defend- ant." (5) The court instructs the jury that the plaintiff in this case sues the transit company to recover damages for the death of her husband, J. P. R., which occurred on the day of , as the result of an electric shock received by him while working in the basement of Power House No. 2 of the defendant. The plaintiff claims that this electric shock was due to the fact that the insulation of the electric wires was improper, imperfect, and im- paired, and that their condition was due to the negligence of the defendant. The defendant denies that there was any negligence on its part, and asserts further that the accident was the result of the negligence of R. himself, by reason of his failure to exer- cise due care in the performance of his work. You have heard all the testimony in the case, and the court instructs you as fol- lows concerning the law : The deceased, R., was lawfully on the premises of the defendant. Although R. was working for an in- dependent contractor, and was not under the control of defend- ant, still it was the duty of the defendant to exercise ordinary care and diligence to have the premises in reasonably safe con- dition. By ordinary care and diligence is meant such care as persons of ordinary prudence would exercise under the same or similar conditions. If the insulation on the electric wires in " Geismann v. Missouri - Edison Elec. Co., 173 Mo. 654, Ti S. W. 654. 553 ELECTRICITY. § 494 question was in an imperfect and dangerous condition, and if such condition was known to the defendant or could have been known by the exercise of reasonable care or inspection, and if R. received an electric shock by reason of such imperfect con- dition, and it was without any negligence on his part, then plain- tiff is entitled to recover a verdict. The mere fact, however, that the insulation was in an imperfect condition would not make the defendant liable unless the further fact appears to your satisfaction from the evidence that the defendant knew or could have known of such defective condition by the exercise of due and ordinary care and inspection. On the other hand, you are instructed that defendant was not an insurer of the safety of plaintiff's husband, and would not be liable for the mere fact that R. was killed from an electric shock on defend- ant's premises, nor would the defendant be required to use the most perfect kind of insulation, if that which was used was reasonably safe and proper under all the circumstances and facts in the case, and the defendant would not be liable if the death of R. resulted from accident without the fault or negligence of anybody. Plaintiff can not recover in this case unless the evi- dence shows and until she has satisfied you by the greater weight of the testimony that the death of her husband was due to the negligence of the defendant as defined and explained in these in- structions in permitting the insulation to be imperfect. You are further instructed that with regard to the question of contrib- utory negligence which defendant sets up in his answer, if the accident to R. was the result of his own negligence and careless- ness in working in a place which a reasonable person in his posi- tion would know to be dangerous, or of his negligence and care- lessness as to the manner in which he performed his work, and that his carelessness and negligence directly contributed to the in- jury, then plaintiff is not entitled to recover. A workman has no right to work in a place which is obviously dangerous, and if he does so, he takes the risks which are naturally incident to such a situation; but the mere fact that R. may have known that the place was dangerous would not in itself deprive the plaintiff of the right to recover, if in point of fact the accident resulted from the negligence of the defendant, and if R. while working in prox- § 494 INSTRUCTIONS FORMS. 554 imity to the cables exercised such care and caution as a man of ordinary care and prudence in his calHng would exercise under like circumstances, and although he may have known there was danger, yet if the danger was not such as to threaten immediate injury to him, or if he might have reasonably supposed that he could safely work in proximity to said wires by the use of care and caution, then he can not be said to have been guilty of con- tributory negligence.^* " Ryan v. St. Louis Trans. Co., 190 Mo. 621, 89 S. W. 865, 2 L. R. A. (N. S.) 777. CHAPTER XLIX. ELEVATORS. Section Section 495. Care in operation and mainte- 499. Presumptive evidence of negli- nance of elevator. gence. 496. Sufficiency of guard at shaft. 500. Contributory negligence. 497. Competency of operator. 501. Right to assume compliance with 498. Injuries on freight elevators. law in operation and equip- ment. § 495, Care in operation and maintenance of elevator. — (i) The court instructs the jury that if they believe from the evidence in this case that the plaintiff, on or about the day of , was rightfully in an elevator in the possession of and operated by the defendant, and situated in the defendant's build- ing, for the purpose of being carried thereby from one of the upper floors of defendant's said building to the ground floor thereof; and if you further believe, from the evidence, that while the plaintiff was so in such elevator, and in the exercise of reasonable and ordinary care on his part, said elevator, owing to the negli- gent and faulty construction thereof, or owing to the negligence and carelessness on the part of the servant of the defendant in operating the same, fell; and if you further believe, from the evidence, that the injury to the plaintiff complained of was caused by the fall of such elevator — ^then your verdict should be for the complainant.^ (2) The court instructs the jury that it was the duty of the defendant, the Elevator Company, and its employe in charge of its elevator at the time and place complained of by plaintiff to exercise ordinary care in the operation of defendant's elevator to avoid striking and injuring persons engaged in 'Hartford Deposit Co. v. Sollitt, 172 III. 222, 50 N. E. 178, 64 Am. St. 35. 555 § 495 INSTRUCTIONS FORMS. 556 work about the elevator shaft ; and if you shall believe from the evidence in this case that defendant's employe in charge of said elevator failed to exercise such care, and by reason of such fail- ure, as a direct and immediate cause of such failure, plaintiff was struck and injured by same, then the defendant is chargeable with negligence and the law is for the plaintiff, and you will so find ; but, unless you shall believe from the evidence in this case that defendant has been proven guilty of negligence, as defined to you in this instruction, then the law is for the defendant and you will so find.^ (3) The court instructs the jury that it was the duty of the company operating and running the hotel to provide said elevator with machinery and fixtures that were reasonably safe for which it was used by the hotel ; that is, the duty and obligation was de- volved upon the company or companies running the hotel and elevator to use that degree of watchfulness and care that a per- son of ordinary prudence would have used under the same sur- rounding circumstances (i) to see that the machinery and fix- tures of the elevator were reasonably safe for the purpose for which they were used, and intended by the hotel to be used, and (2) to see that they were kept in this condition of reasonable safety. The company or companies operating the hotel were not required to guard against latent defects in the elevator or in its machinery which could not have been seen or discovered by such an inspection as a reasonably cautious and prudent person would have given the machinery. Therefore if you find and believe from the evidence that the elevator fell by reason of latent de- fects existing in it or its attachments, that could not, prior to the day of the accident, have been discovered by the use of reasonable care and diligence (that is, such care and diligence as an ordina- rily prudent person would have used for the company or com- panies running the hotel), then you will find for the defendants,' (4) The court instructs the jury that some evidence has been introduced in this case tending to show certain defects in the ' Otis Elev. Co. V. Wilson, 147 Ky. structions on safety of apparatus and 676, 145 S. W. 391. working place, see Pittsburgh &c. R. 'The Oriental v. Barclay, 16 Tex. Co. v. Lamphere, 137 Fed. 20, 69 C. Civ. App. 193, 41 S. W. 117. For in- C. A. 542. ^57 ELEVATORS. § 497 • elevator and the door in question on occasions prior to the time of the injury to plaintiff's son, as set forth in his complaint. If you find from the evidence the existence of such defects, you may consider such evidence as bearing upon the question as to whether defendant had notice, or by the exercise of reasonable care and diligence should have known, of said defective condition of the elevator in question at the time of the injury complained of to plaintiff's son.* § 496. Sufficiency of guard at shaft. — The court instructs the jury that by a sufficient guard rail is meant such a one as is reasonably secure, and will render the shaft and opening rea- sonably safe, under all ordinary circumstances."* § 497. Competency of operator. — The court instructs the jury that the facts, without dispute, further show that the chambermaids in the hotel were under the control and direction of the housekeeper, that said housekeeper hired and discharged them at will, and that C. V., who was running and operating the elevator, was under the control, management, and direction of some officer or agent of the hotel. This being so, you are told that under the law the plaintiff, N. B., was a fellow servant with C. v., the party operating the elevator at the time of the accident. Therefore, if you find and believe from the evidence that C. V. was a competent elevator operator, and that the elevator fell by reason of his negligence, or if you find and believe . from the evidence that the elevator fell by reason of the negli- gence of C. v., and further believe that C. V. was an incom- petent elevator operator, and further believe that the defendants did not know of his incompetency, if you find he was incom- petent, and that the defendants could not by the use of ordinary care and diligence have known prior to the falling of the elevator that he was incompetent, then you will find a verdict for the de- fendants. On the other hand, if you find and believe from the evidence that the elevator fell on the occasion in question by rea- son of the negligence of C. V., and you further find that C. V. * Ohio Val. Trust Co. v. Wernke ' Rosenbaum v. Shoflner, 98 Tenn. (Ind.), 99 N. E. 734. 624, 40 S. W. 1086. § 498 INSTRUCTIONS FORMS. 558 » was an incompetent elevator operator, and that the elevator fell by reason of his incompetency, and that the defendants knew prior to the date of the accident that he was an incompetent elevator operator, then you will find against the plaintifjf on the ground that the elevator fell by reason of the negligence and in- competency of the said C. V., if you find that it did fall by reason of his negligence and incompetency." §498. Injuries on freight elevators. — (1) The court in- structs the jury that if they believe from the evidence that, on and prior to the day of , in the year , the C. build- ing was located at the northwest corner of N. and O. streets, in the city of S., and conducted and operated as an office build- ing; and that a freight elevator was maintained and operated in said building for the use and convenience of incoming and out- going tenants; and that on, and for a long time prior to, the ■ day of , in the year , it was and had been the cus- tom to carry persons who were handling furniture, goods, ar- ticles and effects belonging to incoming and outgoing tenants upon said elevator; and that plaintiff, on the day of , in the year , while handling and in charge of furniture and ef- fects of an outgoing tenant of said building, entered said elevator for the purpose of being carried therein; and that plaintiff was exercising ordinary care ; and that said building was at all times owned by the C. Building Company, and was being operated and conducted by the M. Trust Company, pursuant to the terms of the agreement in writing between the trust company and the building company, bearing date the day of , in the year , and which has been read in evidence, and that, pursuant to the terms of said contract, said trust company was, at said times, in full control of said building and the management thereof, receiving all income, selecting, employing and paying all the servants, engineers and operators of said building, and in its dis- cretion determining and making all repairs in said building ; that it was the duty of both of said defendants, their agents and serv- ants, in charge of said elevator, and the machinery operating the same, to use the highest practicable degree of care to carry plain- tifif in said elevator safely, and also to use the highest practicable "The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117. 559 ELEVATORS. § 498 degree of care to keep said elevator and its hoistings and lower- ing apparatus, and the engines, boilers and machinery and ap- purtenances used in connection therewith, in good repair; and if the jury believe from the evidence that on the day of , in the year , the aforesaid elevator or the machinery, or any part thereof, was out of repair, and that said defendants knew, or by the exercise of the highest practicable degree of care and foresight could have known, that the same were out of re- pair, and if they believe that, by reason of said elevator or ma- chinery, or any part thereof, being so out of repair while plain- tiff was riding on said elevator, it gave way and fell, and that plaintiff was injured by such fall, then the jury should find for the plaintiff, against both defendants/ (2) The court instructs the jury that, if you believe and find from the evidence, that on or about the day of , in the year , the defendant, the M. Trust Company, an agent of the C. building, was operating a freight elevator in the C. building, in the city of S., under the contract of the day of , in evidence, and at said time carried passengers thereon, who were taking freight in and out of said building for tenants, and that plaintiff was such passenger and had taken passage upon said elevator in said building, and that, while he was so a passen- ger, being carried upon the said elevator, operated by the said defendant, as aforesaid, the said elevator fell from about the seventh story, and suddenly dropped to the bottom of the elevator shaft in the basement of said building, and that plaintiff was himself exercising ordinary care, and that he was, by such fall and dropping of the elevator car, precipitated to the bottom of said elevator shaft, and injured thereby, then the law presumes that such injury to the plaintiff was caused by defendant's neg- ligence, and such facts, if proved by a preponderance of the evi- dence, make out a presumptive case for the plaintiff and you should find a verdict for the plaintiff against both defendants, unless you further believe from the evidence that, notwithstand- ing this presumption, the defendants, at the time of the happening of the injury, in fact had then fully performed, or were then 'Orcutt V. Century Bldg. Co., 214 Mo. 35, 112 S. W. 532. § 499 INSTRUCTIONS FORMS. 560 fully performing, their duty, as defined and stated in other in- structions herein, toward plaintiff as such passenger, or that such injury to plaintiff, if any, did not occur because of any failure of the defendants in such respect.® (3) The court instructs the jury that, if they believe and find from the evidence that the defendant, the M. Trust Company, under. the contract of date the day of , in the year , in evidence, was managing the C. Building and operating the freight elevator therein, and that plaintiff became a passenger thereon, as set out in other instructions, and that plaintiff was exercising ordinary care, and that, while plaintiff was a passen- ger in said elevator, it fell without his fault and he was injured thereby, the burden is not upon the plaintiff to show what par- ticular thing caused the elevator to fall, but the burden is upon the defendants to overcome the presumption that the fall of said elevator occurred through their negligence ; and, unless the jury believe from the evidence that the fall of said elevator was with- out their fault, you should find for the plaintiff, against both de- fendants.^ § 499. Presumptive evidence of negligence. — The court instructs the jury that if you find that the elevator was stopped on the second floor at the place where the plaintiff was waiting, and in response to his signal, and the door thereof was opened by defendant's servant in charge of such elevator, and that while plaintiff was in the act of entering the elevator was started by defendant's servants, and by reason thereof plaintiff was injured, as alleged in his petition, this would be presumptive evidence of negligence upon the part of defendant so far as such negligence is alleged in plaintiff's petition to be overcome only by evidence which would show that the defendant was not in fault, or that the accident was due to plaintiff's own negligence or that his own negligence contributed thereto.^" ' Orcutt V. Century Bldg. Co., 214 " Wagner v. Farmers' &c. Ins. Co., Mo. 35, 112 S. W. 532. 90 Nebr. 463, 133 N. W. 650. "Orcutt V. Century Bldg. Co., 214 Mo. 35, 112 S. W. 532. 561 ELEVATORS. § 501 §500. Contributory negligence. — (1) The court instructs the jury that if you find from the evidence that an ordinarily careful and prudent man, placed under the same circumstances that the evidence shows surrounded S., would have seen and known the whereabouts of the stove, platform, and elevator, and its condition, then the law says that S. saw and knew its condi- tion. So that, after he saw the condition of the elevator and things about it, or as an ordinarily prudent man ought to have seen them, if you find that he accidentally stepped into the ele- vator opening, then this was such an act of negligence on his part as would defeat the widow's right of recovery in this case. And again, where he knew, or ought to have known, the condi- tion of the elevator and its surroundings, if you find that he acci- dentally stumbled and fell backwards into the elevator, this would be an unavoidable accident, as far as D. P. S. was concerned, and would not make the defendant, M. R., liable for the fall into the elevator, and its consequences, unless the evidence establishes the fact that he failed to do what ordinary care and prudence suggests ought to have been done.^^ (2) The court instructs the jury that if the elevator was raised or lowered at the plaintiff's request after it came to a standstill, so that such raising or lowering conduced to the accident, such raising or lowering was not negligence on the part of the de- fendant.^^ (3) The court instructs the jury that if you believe from the evidence that the plaintiff knew the defective and dangerous condition of said elevator and voluntarily took passage thereon, and for his own purposes and not in obedience to any command or directions from those superior to him in the employ of said Company, and that the injuries received by plaintiff, if any, resulted from plaintiff going voluntarily upon said elevator, then the law is for the defendant, and you will so find.^' § 501. Right to assume compliance with law in operation and equipment.— The court instructs the jury that the plain- " Rosenbaum v. Shoffner, 98 Tenn. " Bullock v. Butler Exch. Co., 24 624, 40 S. W. 1086. See also Kyle v. R. I. SO, 52 Atl. 122. Southern Elec. &c. Power Co., 174 "Lax-Fos Co. v. Rowlett, 144 Ky. Pa. 570, 34 Atl. 323. 690, 139 S. W. 836. 36 — Branson's Inst. § 50I INSTRUCTIONS FORMS. 562 tiff had a right to assume that the provisions of the law have been complied with, and that that car could not start up or down so long as the doors remain open. If you find that the statute was not complied with, and that that was the conducing cause of this accident, that of itself would be some negligence — sufifi(j^ent negli- gence, perhaps ; and it is for you to determine the weight which you will attach to that and all parts of the evidence.^* " Bullock V. Butler Exch. Co., 24 more City Pass. R. Co. v. Nugent, 86 R. I. SO, 52 Atl. 122. See also Balti- Md. 349, 38 Atl. 779, 39 L. R. A. 161. CHAPTER L. EMINENT DOMAIN. Section Section 502. General rules for determining 510. Damages incident to use of amount of award. property by condemner. 503. Damages actual and not specu- 511. Damages for inconvenience re- lative, suiting from location of road 504. Damages limited to those caused through land. by proposed use. 512. Farm crossings and fences. 505. Time to which valuation should 513. Consideration of value of spring relate. on land taken. 506. Market value. 514. Condemnation of property for 507. Benefits from improvement. pest house. 508. Damages and benefits to portions 515. View of premises by jury. not taken. 516. Right of jury to use own judg- 509. Consideration of special uses to ment and disregard evidence which land may be put. in determining value. § 502. General rules for determining amount of award. — (i) The court instructs the jury that just compensation is the payment to another of such a sum of money as will make him whole, so that, upon the receipt of the same, he will be no poorer by reason of the taking of his property than he would be if the same were not taken.^ (2) The court instructs the jury that the question which you are called upon to try is to ascertain how much damage the plaintiff, J., will sustain by reason of the appropriation of his real estate and the construction of their road thereon. This ques- tion you will determine by finding the value of the land that re- mains after the company has appropriated its right of way and built its road, and by determining the value of the entire lot as " This instruction withstood the ob- For similar instructions, see Phillips jection that it did not state a raaxi- v. Scales Mound, 195 111. 353, 63 N. mum beyond which the jury should E. 180; Metropolitan &c. R. Co. v. not go. West Chicago Park Comrs. Stickney, 150 111. 362, 37 N. E. 1098, V. Boal, 232 111. 248, 83 N. -E. 824. 26 L. R. A. 773. 563 § 503 INSTRUCTIONS FORMS. 564 it now is and deducting one from the other, and the difiference will be the measure of plaintiff's damage.^ (3) The court instructs the jury that if they find their verdict for the plaintiffs, they will award such sum in damages as will reasonably compensate them for any loss sustained by them by reason of the injury to the land to be estimated by the deprecia- tion, if any, in the reasonable market value of said land directly caused by the injury, considering the reasonable market value of said land immediately before the injury and its reasonable market value immediately after the injury but not to exceed five thou- sand dollars, the sum claimed in the petition.^ (4) The court instructs the jury that the measure of damages in such case as this is to be determined as of the present time and is the difference, if any, in the fair, cash, market value of re- spondent's property (consisting of its saw-mill and shingle-mill plants, its land and timber holdings and rights, its logging rail- road and right of way as they are used, needed, and operated together), with the changes proposed and as proposed by the pe- titioner, including the temporary track proposed and to be used by respondent while permanent changes are in course of con- struction, and its present fair cash market value as it is nov/ and without any changes, which amount is to be ascertained and de- termined without regard to any benefit that may result from the construction of petitioner's railroad.* § 503. Damages actual and not speculative. — The court instructs the jury that in assessing the damages to the market value of the property not taken, you should not take into con- sideration anything as an element of damages which is remote or imaginary or uncertain or speculative, even though men- tioned or testified about by witnesses, but the only elements which you should take into consideration as tending to reduce the market value are those which are appreciable and substan- tial and which will actully lessen the market value of said prop- erty.^ ' Consolidated Trac. Co. v. Jordan, ' Northern Pac. R. Co. v. Union 36 Ind. App. 156, 75 N. E. 301. Lumber Co. (Wash.), 137 Pac. 306. ' Madisonville &c. R. Co. v. Wiar, ^ Kiernan v. Chicago &c. R. Co., 144 Ky. 206, 138 S. W. 255. 123 111. 188, 14 N. E. 18. 565 EMINENT DOMAIN. § 506 § 504. Damages limited to those caused by proposed use. — ^The court instructs the jury, for the defendant, that if they believe from the evidence that plaintiff is entitled to recover, then they can only award damages for any injury caused by the switch track running into L. B. O. Mill, and they must not take into con- sideration any damage from the other two tracks of defendant, as defendant has bought and paid for the right to construct and operate said two tracks.* § 505. Time to which valuation should relate. — The court instructs the jury that the assessment of damages must relate to the time of the condemnation.'^ §506. Market value. — (1) The court instructs the jury that the defendants in this case are each entitled to the fair cash market value on the day of , in the year , of their respective lots sought to be taken, regardless of the causes which give them value at that time. If the jury believe, from the evi- dence in the case, including their own view, that the value of said lots, or any of them, on that day was owing, in whole or in part, to the projection by the plaintiff of the improvement to its rail- road facilities for which it seeks to condemn said lots, still the owners of said lots are entitled to the fair cash market value of said lots as they then stood.' (2) The court instructs the jury that they are not to consider the price which the property would sell for under special or ex- traordinary circumstances, but its fair cash market value if sold in the market, under ordinary circumstances, for cash, and not on time, and assuming that the owners are willing to sell, and the purchaser is willing to buy.® (3) The court instructs the jury that the phrase "market value", as used in these instructions, does not mean what the Romano v. Yazoo &c. R. Co., 87 ' Phillips v. Scales Mound, 19S 111. Miss. 721, 40 So. ISO. 353, 63 N. E. 180. For similar in- 'Muncie Natural Gas Co. v. Al- structions, see Brown v. Calumet lison, 31 Ind.'App. SO, 67 N. E. 111. River R. Co., 125 111. 600, 18 N. E. 'Rock Island &c. R. Co. v. Leisy 283; Kiernan v. Chicago &c. R. Co., Brewing Co., 174 111. 547, 51 N. E. 123 III. 188, 14 N. E. 18; Calumet 572. River R. Co. v. Moore, 124 111. 329, § So6 INSTRUCTIONS FORMS. 566 defendant holds the land at, nor what he asks for it, nor does it mean what the land may be worth to any particular person for any particular purpose, but said phrase does mean the fair selling value of the land in the market to be used for any of the pur- poses to which it is susceptible of being put, either in its present condition or any condition to which it is susceptible of being changed.^" (4) The court instructs the jury that the market value of the property is not to be determined by the value of the strip in question to the plaintiff, or plaintiff's necessity of acquiring it, nor its peculiar value to defendant. These considerations must in no way be allowed to affect the determination by the jury of the value of the whole property, or of the strip sought to be ap- propriated by plaintiff in this proceeding.^^ (5) The 'court instructs the jury that the market value of the property means its actual value independent of the purposes for which it is to be used by the railroad company ; that is, the fair value of the property as between one who wants to purchase, and one who wants to sell it. Not what could be obtained for it in peculiar circumstances when greater than its fair price could be obtained ; nor its speculative value ; nor the value obtained through the necessities of another ; nor, on the other hand, is it to be lim- ited to that price which the property would bring when forced off at auction under the hammer. The question is: If the de- fendant wanted to sell his property, what could be obtained for it upon the market from the parties who wanted to buy and would give its full value ? The market value is not to be determined by the value of the railroad company or the railroad's necessity for acquiring it. This consideration must, in no way, be allowed to affect the determination by the jury of the value of the property sought to be appropriated by the railroad company.^^ (6) The court instructs the jury that, the measure of dam- ages to which defendant is entitled is the full market value of lots IS N. E. 764; Kansas City v. Bacon, "St. Louis &c. R. Co. v. Knapp &c. 167 Mo. 450, 57 S. W. 1045. Co., 160 Mo. 396, 61 S. W. 300. " Kansas City &c. R. Co. v. Shoe- " Metropolitan St. R. Co. v. Walsh, maker, 160 Mo. 425, 61 S. W. 205. 197 Mo. 392, 94 S. W. 860. 567 EMINENT DOMAIN. § 507 to , inclusive, in block , and you will return a ver- dict for the defendant in the amount so found by you, and re- turn a verdict for the plaintiff for the land in controversy. In estimating the value of the property taken for public use, it is the market value of the property which is to be considered. You are instructed that the market value of property is a price which it will bring when it is offered for sale by one who desires but is not obliged to sell it, and is bought by one who is under no necessity of having it, and in this estimate you will not consider that this proceeding is pending to take said property by condem- nation. In determining the value of property, all of the uses to which it may be applied, and for which it was adapted on , ig — , are to be considered, and not merely the condition that it is in at the time, and the use to which it is then applied by the owner. You are further instructed that the damages can not be measured by the value of the property to the party condemning it, nor by its need of this particular property. You are further instructed that in ascertaining the market value of said property on the day of , you should consider the condition of the property at that time, its locality with respect to business and de- mand for property at that time, and any increase or development thereof that might have been reasonably expected in the immedi- ate future at that time. In ascertaining what the market value of the property involved in this controversy was on the day of , you should consider the conditions then existing at said time, but you would not be authorized to consider speculative or merely possible contingencies, and you would not be authorized to consider any evidence as to speculative values.^^ §507. Benefits from improvement. — (1) The court in- structs the jury that you should not assess defendants' damages or offset benefits upon the idea that petitioner will operate its railroad as a street railroad." (2) The court instructs the jury that, in making up their ver- dict as to benefits to be assessed to the property owner, the only matter for their inquiry is the amount of increase in the actual " El 'Paso V. Coffin, 40 Tex. Civ. " St. Louis &c. R. Co. v. Smith, 216 App. 54, 88 S. W. 502. 111. 339, 74 N. E. 1063. § 507 INSTRUCTIONS FORMS. 568 market value of the remainder of the lot on U. Parkway not taken, which will be caused by the acquisition, through these proceedings by the mayor and city council of B., of title to her land condemned and taken by the city in and for the opening of T.-S. street from C. street to U. Parkway, and their verdict as to benefits should be limited to such increase, if any there be, and they can not inquire into or take into consideration the amount allowed by the commissioners for opening streets, or the amount that they (the jury) may allow the property owner as damages for the land so condemned and taken by the city/^ (3) The court instructs the jury that by your verdict you shall show a correct description of each piece or parcel of prop- erty taken, and the value thereof, and of each piece or parcel of private property damaged, and the amount of injury thereto. You shall also show by your verdict the amount, if any, assessed against the city, and shall show the amount of benefits assessed against each piece or parcel of private property found benefited within the benefit district. In estimating the benefits that may accrue to the city and to the public generally, or to any property in the benefit district, by reason of the proposed improvement, you shall consider only such benefits as are direct, certain, and proximate. ^° (4) The court instructs the jury that in arriving at their ver- dict they should not consider the benefits, if any, that may ac- crue to defendant by reason of the construction of said road which are common to other landowners in the vicinity of said road, parts of whose lands are not taken, nor should the jury consider the opening up of new countiy by the plaintiff as a spe- cial benefit to defendant." (5) The court instructs the jury that if you think that the conditions that exist in that locality without the improvement projected by this ordinance are unsettled with respect to per- manency of grade, with respect to the location of the bridge over the canal, with respect to the time that the government "Baltimore v. Megary (Md.), 89 "St. Louis &c. R. Co. v. Conti- Atl. 331. nental Brick Co., 198 Mo. 698, 96 S. "Kansas City v. Bacon, 157 Mo. W. 1011. 450, 57 S. W. 1045. 569 EMINENT DOMAIN. § 508 might permit the canal to be used at the present grade, if you think that the present conditions are unsettled so as to ai¥ect the market value of the property, then you will inquire from the evidence whether, by virtue of this proposed public improve- ment, these conditions will be settled, whether permanency will be brought about affecting the market value of the property, and if, from consideration of the whole case, you are satisfied that the property is damaged in excess of the special benefits that will ac- crue to it over and above the general benefit flowing to the public from this public improvement, then your verdict would be for damages with respect to the realty alone in that amount/^ § 508. Damages and benefits to portions not taken. — (1) The court instructs the jury that you are to determine in this case the value of the property taken by the railroad and the damage to the remainder of the property owned by the defendants." (2) The court instructs the jury that they are to ascertain from the evidence, after their own view of the property, the fair market value of the property sought to be taken, and also the damages, if any have been proven, to the property from which the strip is to be taken. And if the jury believe, from the evi- dence, tljat the property occupied by the ice company, in its pres- ent condition, has a special capacity, as an entirety, for the pur- pose of ice-freezing, cutting and transporting, and as an entirety is devoted to such purposes, and that the value of such tract will be depreciated and lessened by the taking of the strip in question, then the owners of the property are entitled to recover a sum equal to such depreciation in value.^" (3) The court instructs the jury that if you beheve, from the evidence, that a large body of land belonging to any defendant '' "When the [trial] court used the We think there is no merit in the ■words 'special benefits that will ac- contention that the court by this in- crue to the property,' in the instruc- struction commented upon the facts,'' tion complained of [the foregoing in- In re Westlake Ave. v. Signor struction], these words had reference (Wash.), Ill Pac. 780. to instructions already given in that "Southern Pac. R. Co. v. Hart, 3 connection and plainly did not as- Cal. App. 11, 84 Pac. 218. sume that there would, in fact, be ^° Hyde Park v. Washington Ice any such benefits. But such question Co., 117 111. 233, 7 N. E. 523. was left for the jury to determine. § 508 INSTRUCTIONS FORMS. 57O adjoins the proposed railroad, and that such large body of land will be worth in the market as much per acre' after the con- struction of the proposed railroad as it now is, then you have no right to assess any damages as to such large body of .land adjoin- ing such railroad. ^^ (4) The court instructs the jury that the measure of the dam- ages which the plaintiffs W. L. A. and J. M. A. are entitled to recover in this cause is the actual damage occasioned by the ap- propriation of the easement described in the instrument of ap- propriation over the strip of land feet wide, an easement over which has been appropriated by this proceeding, taking such damages as the date of the day of , the day when the instrument of appropriation was filed herein, and considering such strip of land as subject to the public easement of the high- way thereover known as the "W. Pike", together with fair and just compensation for any injury to the residue of the plaintiffs' land from which such strip was taken, naturally resulting from the appropriation of the easement described in the instrument of appropriation.^^ (5) The court instructs the jury that if your finding be for the plaintiff, it will be your duty to assess her damages. In domg this you may take into consideration the value of the lands taken as shown by the evidence ; and in addition you may take into con- sideration the damages sustained by the residue of plaintiff's lands as affected by such taking; and in doing this you may consider the location of the lands; the purposes for which they were or might have been used ; the character and quality of the lands; the conveniences for farming, if farm lands, before and after such taking; the shape and condition in which such lands are left ; the damage of such land as affected, if affected by such taking and construction ; the buildings and improvements on said lands, and how affected; the danger of fire, if any has been shown; and the destruction of improvements, such as fences, if any be shown, and from all these things, and all the evidence given in the case, it is for you to fix the amount of her recovery.^' "■ Prather v. Chicago S. R. Co., 221 ^ Chicago &c. R. Co. v. Patterson, III. 190, 77 N. E. 430. 26 Ind. App. 295, S9 N. E. 688. '' Muncie Natural Gas Co. v. Al- lison, 31 Ind. App. 50, 67 N. E. 111. 571 EMINENT DOMAIN. § 508 (6) The court instructs the jury that if you find in the process of time that the proposed road will reasonably bring added ben- efits to this land, you may consider how much at this time the ben- efit would be to this land by establishing this road.^'' (7) The court instructs the jury that the material question for you to determine is, what was the fair market value of lot in block in the city of C. R., L. county, I., when it was taken by defendants, to wit, , 19 — ? And, in estimating said value from all the evidence introduced on that question, you will not consider or deduct any benefit, if any you find plaintiff has "derived, on account of any enhanced value that has accrued to plaintiff by reason of any contemplated building of the said de- pot. Nor will you consider any enhancement in value of the said lot by reason of any building or improvement defendants may have subsequently erected on the lot ; and consider only the fair market value of said lot when taken by defendants, as estab- lished to your satisfaction by the evidence.^^ (8) The court instructs the jury that, if they believe from the evidence in the case that the placing of said third or switch track in front of plaintiflE's property on L. street damaged the property of plaintiff for the purposes and uses to which it was put, they can not offset such damage by the enhanced value, if any, of said property for warehouse purposes by the placing of said third track or switch in front of plaintiff's property.^" (9) The court instructs the jury that in estimating the dam- ages in this case the jury should take into consideration the actual value of the strip of land sought to be condemned by plaintiff, and benefits, if any, and the disadvantages, if any, resulting to the remainder of the lands of defendant not taken by plaintiff, from the appropriation by plaintiff of the strip of land in question for the purpose of its said railroad. The benefits to be con- sidered and allowed by the jury are the direct and peculiar ben- efits, if any, which result to the remainder of the lands of de- fendant not appropriated by plaintiff, not the general benefits " Fifer v. Ritter, 159 Ind. 8, 64 N. " Romano v. Yazoo &c. R. Co., 87 E. 463. Miss. 721, 40 So. ISO. "Snouffer v. Chicago &c. R. Co., 105 Iowa 681, 75 N. W. 501. § S08 INSTRUCTIONS FORMS. 572 which defendant derives, in common with other landowners in the vicinity, from the building of the road. Neither should the jury, in estimating the damages in this case, take into considera- tion such inconveniences and disadvantages to the defendant as are consequences of the lawful and proper use of the railroad, in so far as the same are common to the other landowners in the neighborhood, portions of whose land are not taken.^^ (10) The court instructs the jury that in assessing the dam- ages that should be allowed to the remainder of the land of J. C. E., from which the land in plat tract number is taken by these proceedings, they should assess such a sum as will com- pensate for the damages to said remainder not taken, less the benefits, if any, peculiar to said tract of land by reason of the establishment of the proposed park ; and by such peculiar benefits is meant such benefits as that land derives from the establishment of said park which are not common to the other land in the same neighborhood on account of the establishment of said proposed park.^^ ( 1 1 ) The court instructs the jury that the defendant is en- titled to just compensation for the land taken for the right of way of the railroad, and also for the injuries, if any, to the re- maining portion of defendant's property. You are instructed not to understand that the value of the land taken is to be esti- mated at its value for use independently of the bala,nce of de- fendant's property, but its value is to be estimated with reference to its use, or reasonable future use, in connection with, and as a portion of, the entire property of the defendant. If you believe from the evidence that the land proposed to be taken has a partic- ular value by reason of its being adapted to a particular use in connection with the defendant's business, or in connection with the reasonable and probable extension of that business, then the defendant is entitled to what the land is worth for that particular use or purpose, and also to compensation for the injury, if any, to the remainder of the defendant's property. In ascertaining the amount of damages to which the defendant may be entitled, you "Cape Girardeau &c. R. Co. v. ''Kansas City v. Bacon, 157 Mo. Blechle, 234 Mo. 471, 137 S. W. 974, 4S0, 57 S. W. 1045. Ann. Cas. 1912D, 246. 573 EMINENT DOMAIN. § 509 are to take into consideration, not only the purposes to which the land is or has been applied, but any other beneficial purpose to which it could, from the evidence, be reasonably applied, and which would affect the amount of compensation or damages.^" § 509. Consideration of special uses to which land may be put. — (1) The court instructs the jury that the owner of the land is entitled to the use and enjoyment of the same for the highest and best use to which it is adapted, and if you find, from all the evidence, that a large portion of the M. farm is by the proposed railroad cut off from the water supply, and the several parts rendered inconvenient of access, so that the whole farm is depreciated in market value and damaged for all time, then you should take such facts into consideration in estimating the dam- ages.*" (2) The court instructs the jury that the owner 6f property to be condemned is entitled to its actual value for its highest or best use to which the property, in the condition it was in at the filing of the petition, could be put, and if the jury believe from the evidence that the property described in the petition and sought to be condemned had an actual value for a specified use, and that such property was devoted and adapted to such use, then the owner is entitled to such value. In this case, the property sought to be condemned has a market value and the jury are in- structed that they are to find from the evidence what such mar- ket value is, and the jury are instructed that the market value of the property sought to be condemned is the same as the value of the property for said specified use, if the jury find from the evidence that the property had a value for a specified use.*^ (3) The court instructs the jury that, in fixing the amount of compensation to be paid to the defendants, severally, you should take into consideration the use for which the property is suitable and to which it is adapted, having regard for its situation and the business wants of that locality, or such as may reasonably be "" Dallas Terminal R. &c. Co. v. "Galesburg &c. R. Co. v. Milroy, Mosher Mfg. Co. (Tex.), 60 S. W. 181 111. 243, 54 N. E. 939. 893. "Chicago &c. R. Co. v. Jacobs, 110 111. 414, 51 Am. Rep. 698. § 5^9 INSTRUCTIONS FORMS. 574 expected in the near future, so far as the same appears from the evidence, and so far as the same affects its market value on the day of , in the year .^^ (4) The court instructs the jury that in determining the fair cash market value of the property sought to be condemned in this case, you have a right to take into consideration and should take into consideration all the purposes for which said prop- erty is adapted and is used or may be used, so far as such adapta- tion and uses are shown by the evidence or by your view of said premises, so far as the same may have affected the market value on the day of • •, in the year .^' (5) The court instructs the jury that if you find, from the evidence in this case, that the lots in question, or any of them, are susceptible of enlargement and extension by filling, thus giving increased areas for any use to which the property may be put, then you have a right to take that into account in arriving at your verdict and give such fact the weight which, in your judgment, it is entitled to receive, so far as the same affected their market value on the day of , in the year ■ .°* (6) The court instructs the jury that the owners, severally, of the lots fronting on the river and here sought to be con- demned, own to the middle thread of the stream, subject only to the right of the public to use the navigable portions thereof for purposes of navigation. Such owners have also the exclusive right to any and all ice forming in said river in front of their lots respectively, to the middle thread of the stream, and may themselves cut and remove the same, or sell such ice to another with the exclusive right to harvest it.'^ (7) The court instructs the jury that, as owners oi lands fronting upon and bounded by a navigable stream, the defend- ants in this case, subject to the rights of the public in such nav- igable stream, own their several lots to the middle thread of said ''Rock Island &c. R. Co. v. Leisy ''Rock Island &c. R. Co. v. Leisy Brewing Co., 174 111. S47, 51 N. E. Brewing Co., 174 111. 547, 51 N. E. 572. 572. ''Rock Island &c. R. Co. v. Leisy ""Rock Island &c. R. Co. v. Leisy Brewing Co., 174 111. 547, 51 N. E. Brewing Co., 174 111. 547, 51 N. E. 572. 572. 575 EMINENT DOMAIN. § 509 stream, and the said defendants, as such lot owners, have the right to use and enjoy their several lots by building docks and wharves thereon, or by filling in the same with earth or other solid matter to any extent whatever, so long as they do not in- terfere with the rights of navigation by the public in such stream.'* (8) The court instructs the jury that while it is proper for witnesses, in making their estimate of damages to be allowed the defendant, to take into consideration any use to which they believe, from the evidence, the property in question may be profitably appropriated, yet the jury are not bound to base their verdict upon the supposition that it would be appropriated to a use other than that to which it is now devoted." (9) The court instructs the jury that you could consider the evidence of the uses to which this property was adapted, all the uses. Upon that, in connection with those uses, you can take into account in the S. case the fact that there was or was not, as you find it to be from the evidence, a supply of water upon the premises. If that would give an added value to the property in the mind of any purchaser in the open market and in the mind of any seller in the open market, you could take that into account ; but you could not use it to mark up a price beyond the fair market value of the property. You could, not give to the S.'s in their case the value of the land, for instance, to the town of M. as a water supply. That you are not to do. If the fact that it was adapted to use as a water supply, if you find that to be a fact, would have affected the mind of anybody in dealing with the property, that you can take into account, but that is the extent to which you can go, and you may think that that, practically, as the land was situated, did not affect its value at all. On the other hand, you may think that it added to or decreased its value. The petitioner is not entitled, as I have just said to swell the dam- ages beyond the fair market value of the land by any considera- tion of the chance or probability that the petitioners might ac- '°Rock Island &c. R. Co. v. Leisy 353, 63 N. W. 180. See also Snod- Brewing Co., 174 111. 547, 51 N. E. grass v. Chicago, 152 111. 600, 38 N. 572. E. 790. " Phillips V. Scales Mound, 195 III. § 509 INSTRUCTIONS FORMS. 576 quire authority by legislation to carry the water in pipes for the purpose of supplying the town of M. or any other town. You can not go beyond the fair market value of the property at the time that it was taken.^* (10) The court instructs the jury that in determining the value of the land in controversy, taken by plaintiff, they may take into consideration its location, the uses and purposes for which the property is suitable or adaptable considering such loca- tion, and having regard, not alone to the existing business wants of the community ill which the same is located, but also to such uses as may be reasonably expected in the near future, together with all the surroundings and conditions as shown in evidence in this case; and you may also take into consideration other bona fide sales of property in the immediate vicinity and similarly located, made at or about the time the commissioners made their report in, this case, to wit, , 19 — .^^ (11) The court instructs the jury that in determining the uses and purposes for which defendant's lot was suitable or adaptable, they are not confined solely to the use, if any, made of said lot at the time it was taken by plaintiff, but may also consider such uses, if any, for which it was reasonably adaptable at that time, considering its location and surroundings.*" (12) The court instructs the jury that they should exclude from their consideration all the evidence showing how many building lots that part of the land located in the borough of B. could be divided into, and what such lots would be worth sep- arately, as speculative and conjectural. They are to inquire what the whole tract was worth before it was touched by the railroad, and what it was worth as affected by the location of the railroad, and not any particular part. The jury may take into considera- tion any purpose for which the land had value at the time of the entry of the railroad company, its quantity, its location with ref- erence to other improvements, its adaptability for particular purposes giving it value ; but it would be improper to arrive at =' Sargent v. Merrimac, 196 Mass. '» Metropolitan St. R. Co. v. Walsh, 171, 81 N. E. 970, 11 L. R. A. (N. S.) 197 Mo. 392, 94 S. W. 860. 996, 124 Am. St. 528. -"Metropolitan St. R. Co. v. Walsh, 197 Mo. 392, 94 S. W. 860. Z^'J'J EMINENT DOMAIN. g 5O9 the amount of damages by estimating the number of lots into which the whole tract or any part of it might be divided, and then estimating what such lots might, in the future, be sold for, and considering how the location of the road might affect the value of such lots.*^ (13) The court instructs the jury that as you have been before instructed, where property is taken for public purposes the owner is entitled to its fair market cash value for the uses to which it may be most advantageously applied, for which it would sell for the highest price in the market ; and if you should find from the evidence in this case that portions of the land taken border on the shores of C. Bay, and that the lands immediately in front thereof are available for manufacturing purposes of any kind, and that, in order to utilize, lease, or sell them for such purposes, it would be necessary to have fresh water ; that on other portions of the land not taken there is fresh water sufficient for the pur- pose ; and that the construction of this road will interfere with the bringing of the water over the right of way — this is an element that you would have a right to consider in estimating the dam- ages sustained. In this connection you should also take into con- sideration the fact that the railway company has stipulated in this case and agreed to construct culverts upon its right of way, under its track, for the transmission of water from all springs now upon the uplands not taken, and that the railway company would be bound by such stipulation to construct its road in such manner as to permit the flow of the water from such springs across its right of way.^^ (14) The court instructs the jury that in this case, if you should find that land taken contains building stone, you are in- structed that the measure of compensation is the fair market value of the land taken with the building stone in it, and the profits or the price or value of such building stone, if the same or any part thereof will be taken by the proposed right of way, should not be considered by you as building stone in arriving at your verdict. The number of tons of building stone that could- " Reiber v. Butler &c. R. Co., 201 " Seattle &c. R. Co. v. Roeder, 30 Pa. 49, 50 Atl. 311. Wash. 244, 70 Pac. 498, 94 Am. St. 864. yi — Branson's Inst. § 5IO INSTRUCTIONS FORMS. . 578 be gotten from the land, and the value per. ton thereof, or the royalties thereon, are not to be considered except as they may guide you in fixing the value of the lands taken or injury to quarry lands ; and as a special rule for your guidance in arriving at the value of any portion of the quarry which you may find from the evidence will be taken, and of the amount of damages to any portion of the quarry not taken, I instruct you that the com- pensation to be awarded by you to the owners is to be estimated by a reference to the uses for which the property is suitable, hav- ing regard to the existing business or wants of the community, or such as may be reasonably expected in the near future.*^ (15) The court instructs the jury that if the property is de- preciated in value by rendering the same less useful for the pur- pose to which it is devoted, or if its capacity to transact its busi- ness is reduced, or if the expense of transacting its business is increased by the crossing, the owners of such road are entitled to compensation therefor. Therefore, if the jury find from the evidence that the respondent's logging road will be diminished in value, as above explained, taking into consideration the pur- pose of the logging road and its connection with respondent's plant and property, you will allow the respondents such sum as will be fair and just compensation.** § 510. Damages incident to use of property by condemnor. — (i) The court instructs the jury that in estimating the dam- ages which you will award in favor of the plaintiffs, you have no right to consider any injuries which might result to plaintiffs from any negligence or unskilfulness of the defendant in the operation and maintenance of its pipe lines over the strip of land sought to be appropriated therein, since the plaintiffs would have the same right to sue for and recover damages for such negli- gence or unskilfulness as would any other person injured thereby.*^ (2) The court instructs the jury that if they believe from the .evidence that the defendant entered upon the plaintiff's private ■"Seattle &c. R. Co. v. Roeder, 30 "Northern Pac. R. Co. v. Union Wash. 244, 70 Pac. 498, 94 Am. St. Lumber Co. (Wash.), 137 Pac. 306. 864. ""Muncie Natural Gas Co. v. Al- lison, 31 Ind. App. SO, 67 N. E. 111. 579 EMINENT DOMAIN. §5IO alley, and built a railroad track or tracks across the same, they must find for the plaintiff such damages as they shall believe from all the evidence she has sustained thereby, not exceeding $ ; but, in estimating the damages, they shall not take into consideration the running of trains thereon.*' (3) The court instructs the jury that, under the law, the rail- road company will be liable hereafter to the defendant for any damages which he may sustain by reason of destruction of prop- erty by fire which may be set or caused by the trains of the rail- road company in operating its line, and any such damages, if any, he ever sustains, will be the proper subject-matter of future actions ; but, in determining the amount of compensation which you will allow the defendant in this action, you can not take into consideration nor allow any sum or amount whatever on account of exposure or liability of property to damage or destruction by fire caused or set by the trains in the operation of the road.*^ (4) The court instructs the jury that in arriving at your ver- dict, and in estimating the amount of damages, if any, which you will allow the defendant, you should not take into considera- tion any damage, if any, which may arise from, or be due to, smoke or noise from' trains passing over the road, or the ringing of bells or sounding of whistles.** (5) The court instructs the jury that in arriving at your ver- dict, and in estimating the amount of damages, if any, which you will allow the defendant, you should not take into considera- tion as an element of damage any danger to life and limb, if any, which may arise from trains passing over the road.*' (6) The court instructs the jury that they are not authorized to allow any damages because of the liability, if any, to persons or any stock being injured or killed by reason of the construc- tion and operation of plaintiff's railroad.^" (7) The court instructs the jury that, in arriving at your ver- " Greene v. Buckler, 19 Ky. L. 286, "Kansas City &c. R. Co. v. Shoe- 40 S. W. 382. maker, 160 Mo. 425, 61 S. W. 205. " Kansas City &c. R. Co. v. Shoe- =° Cape Girardeau &c. R. Co. v. maker, 160 Mo. 425, 61 S. W. 205. Blechle, 234 Mo. 471, 137 S. W. 974, "Kansas City &c. R. Co. v. Shoe- Ann. Cas. 1912D, 246. maker, 160 Mo. 425, 61 S. W. 205. §511 INSTRUCTIONS FORMS. 580 diet and in estimating the amount of damages, if any, which you will allow the defendant, you should not take into consideration any damage, if any, which may arise from the scaring, frighten- ing, or killing of animals while on the right of way, or the dan- ger to person of the owner, his agents or servants, in crossing said railroad. ^^ (8) The court instructs the jury that unless you find and be- lieve from the testimony that the defendant was negligent in the construction or operation of its railway, you will find against the plaintiff on the question of compensation for discomforts and annoyances, if any, occasioned by the construction and operation of its railway.^^ (9) The court instructs the jury that you have the right, and it is your duty, to take into consideration whatever, if any, addi- tional expense respondent will be put to in order to reasonably insure safety in the operation of its logging road and trains, hav- ing reference to the lives and property of its own and any other factor that it must reasonably take notice of in operating its trains just as the situation will be, including whatever change there may be in structural conditions or distance, not as an element of specific damages, but as a burden cast upon respond- ent's property affecting the market value thereof. You may not, however, take into consideration any damages or liability therefor on account of accidents that may or may not happen at the cross- ing.°' § 511. Damages for inconvenience resulting from location of road through land, — The court instructs the jury that in estimating the damages to be allowed the defendant, the jury will take into consideration the amount and value of the land taken for right of way, the size and shape of the two tracts into which the farm is divided by the location of the right of way through 'it, the cuts and fills, the inconvenience in getting from one part of the farm to another on account of the location of the railroad, any inconvenience in getting to water, and will al- "' Kansas City &c. R. Co. v. Shoe- ^ Northern Pac. R. Co. v. Union maker, 160 Mo. 425, 61 S. W. 205. Lumber Co. (Wash.), 137 Pac. 306. "Texas Short Line R. Co. v. Clif- ford (Tex.), 94 S. W. 168. 581 EMINENT DOMAIN. §513 low defendant such sum as will reasonably compensate him for the injury he has sustained by the appropriation of the right of way through the farm." §512. Farm crossings and fences. — (1) The court in- structs the jury that under the law the railroad company is not required to fence its right of way until its railroad has been in actual operation, with trains running over it, for the term of six months, and it is proper for you to consider this fact in esti- mating the plaintiff's damages.^^ (2) The court instructs the jury that under the law the plain- tiff is entitled to one adequate crossing across defendant's right of way on his farm, at such a reasonable place as plaintiff may designate, and defendant will be bound to furnish such crossing at such place upon the request of the plaintiff for the same ; but whether such adequate crossing will be a surface crossing or an under crossing you have nothing to do with in this case, but should, without regard thereto, fix the plaintiff's damages in ac- cordance with the instructions here given you.°° (3) The court instructs the jury that the law presumes that the defendant railroad company will furnish and construct an adequate crossing sufficient to meet the necessities of the plaintiff. In estimating the damages in this case, you should assume that such adequate and sufficient crossing will be provided by the rail- road company.^^ (4) The court instructs the jury that the law requires the plaintiff railway company to fence its right of way, and to con- struct all necessary gates and farm crossings, and, in estimating damages, the jury will consider all necessary fences and farm crossings as actually made.°^ § 513. Consideration of value of spring on land taken. — The court instructs the jury that in passing upon the value of " Kansas City &c. R. Co. v. Shoe- " Lough v. Minneapolis &c. R. Co., maker, 160 Mo. 42S, 61 S. W. 20S. 116 Iowa 31, 89 N. W. 11. "'St. Louis &c. R. Co. V. Smith, "* Kansas City &c. R. Co. v. Shoe- 216 III. 339, 74 N. E. 1063. maker, 160 Mo. 425, 61 S. W. 205. °° Lough V. Minneapolis &c. R. Co., 116 Iowa 31, 89 N. W. 11. §514 INSTRUCTIONS FORMS. 582 lots , , , and of block , Mt. A. addition, embraced in these proceedings, and known as "Parcels , , , ," and containing the spring of water known as "W. S.", the jury are authorized, in connection with all the other evidence in the case, to take into consideration the special value of said spring, if any, together with all the lawful uses, such as sale of water ot piping to supply families, to which the owner may put such spring and water as a source of profit/' §514. Condemnation of property for pest-house. — (1) The court instructs the jury that, if they should find for the plaintiff, then that the criterion or measure of damage is whatever amount plaintiff's farm has been depreciated in market or salable value by reason of the defendant's locating of and the maintain- ing of its pest-house and carrying on the same in proximity to his farm."" (2) The court instructs the jury that the measure of damages in a case of this kind would be and will be what you believe from the evidence would be the fair and reasonable rental value of that property for the purpose for which it was taken and used. It is what damage the property sustained by reason of having been used for a pest-house. And you must arrive at the measure of damages — ascertain the measure of damages — from the evi- dence, not from any preconceived notions of your own, but from the evidence brought out upon the trial, and from that come to your conclusion."^ § 515. View of premises by jury. — (1) The court instructs the jury that the purpose of viewing the premises is to enable the jury better to understand the testimony of the witnesses respect- ing the same, and more intelligently apply such testimony to the issues before them, and not to make them silent witnesses in the case. You will consider the evidence in the light of your view of the premises, but you must determine the facts of the case from ™ Kansas City v. Bacon, 157 Mo. "Brown v. Pierce County, 28 450, 57 S. W. 1045. Wash. 345, 68 Pac. 872. " Paducah v. Allen, 23 Ky. L. 701, 63 S. W. 981. 583 EMINENT DOMAIN. § 5l6 the evidence alone. You must not base your verdict in any de- gree upon your examination of the premises."^ (2) The court instructs the jury that in this case you have been permitted to view the premises in question. One of the ob- jects of the view was that you might acquire such information as to the physical conditions and characteristics there as would come to one through the sense of seeing. What the jury see they know ; and another purpose of the view was that by putting you in possession of such information as would come to you through the sense of seeing you would be better thereby enabled to weigh, consider, and apply the testimony which would be introduced in the trial of the cause. In this case it is your duty to har- monize the testimony of the witnesses, if possible, so as not to impute false swearing to any witness. If this can be done con- sistently with the truth, you should do so, but if you find it im- possible to harmonize the testimony, and if you find further from the evidence of your senses of view and from the testimony on the stand that any witness who has testified before you has wil- fully testified falsely concerning any material fact in the case, then you have a right to disregard his entire testimony, except in so far as you may find that the testimony of such witness is cor- roborated by other credible evidence or by facts and circum- stances proved on the trial. And if in your judgment the evi- dence is conflicting as to the benefits, you should resort to the knowledge gained upon your view as bearing upon the weight to be given to the various and conflicting statements and esti- mates.*^ § 516. Right of jury to use own judgment and disregard evidence in determining value. — (1) The court instructs the jury that in estimating damages they are permitted to exercise, in weighing the evidence, their individual judgment as to values upon subjects within their knowledge which they have acquired through experience and observation." "'Guinn V. Iowa &c. R. Co., 131 see Trustees of Schools v. Kuhn Iowa 680, 109 N. W. 209. (111.), 103 N. E. 5S3. ""Newell V. Abey (Wash.), 137 "Beveridge v. Lewis (Cal.), 67 Pac. 811. For similar instructions, Pac. 1040. § 5^6 INSTRUCTIONS FORMS. 584 (2) The court instructs the jury that, if they beheve from the whole evidence that they have, from personal examination of the premises, arrived at a more accurate judgment and determina- tion as to the value of the premises sought to be taken, and of the amount of damages, if any, than is shown by the evidence in open court, then and in that case they may, upon the evidence, right- fully fix the value of the land taken and the amount of damages, if any, over and above special benefits, if any, at the amount so approved by their judgment, so formed from personal examina- tion of the premises as a jury, even though it may differ from the amount testified to, and from the weight of testimony given by witnesses in open court."^ (3) The court instructs the jury that if you believe, from the entire testimony and from your inspection of the premises, that any witness has magnified or exaggerated the value of the land taken, or the damages to the land not taken, on account of his in- terest in the suit, or his prejudice, or want of knowledge or ex- perience or truthfulness, then you have the right, and it is your duty, to disregard the evidence of such witness in so far as the same is unjustly magnified or unjustly increased, either as to the value of the land taken or the damages to the property of the defendant not taken.°° (4) The court instructs the jury that you have the right to use your own knowledge of the values of lands, the operating of railroads, and of affairs generally, in connection with the testi- mony as to the values and damages which has been given by the witnesses. By this is meant that you are not obliged to rely wholly upon the opinions of the witnesses as to the value of this land or as to the damages, but that, in connection with such ™Guyer v. Davenport &c. R. Co., their right and duty to disregard the 196 111. 370, 63 N. E. 732. evidence of such witness, in so far ""This instruction had the effect of as it was thus unjustly exaggerated." telling the jury that they "were not Kiernan v. Chicago &c. R. Co., 123 obliged to accept a witness' statement 111. 188, 14 N. E. 18. See also David as sworn to, but that if, from the en- Bradley Mfg. Co. v. Chicago &c. tire testimony and their inspection of Trac. Co., 229 111. 170, 82 N. E. 210 ; the premises, they believed any wit- Goss Print. Press Co. v. Lempke, 191 ness had exaggerated the value of 111. 199, 60 N. E. 968. the land or the damages, then it was 585 EMINENT DOMAIN. §5l6 opinions, you may use and be guided by your own judgment on such matters." (5) The court instructs the jury that in regard to the evidence before you of experts and others concerning the value of the land taken by the railroad company, and the actual damage, if any, done to the defendants' land, you are not bound by the testimony of such witnesses, but you may apply your own judgment and knowledge as to such values and damages in arriving at your ver- dict in connection with the testimony offered in this case at the trial.'' (6) The court instructs the jury that all these matters are proper for your consideration in determining the reasonable market value of the property, at the time it was taken, and the damages, if any, to the remaining lot ; but you are not bound by this evidence alone. You have been permitted to make a view and iiispection of the property in question and you have a right to exercise your own judgment, based upon your inspection and observation, together with all the evidence, which has been per- mitted to go to you during the trial. Remember, all this evidence and your own observation is for the purpose of enabling you to form a correct judgment as to the reasonable market value of these lots , 19 — , and the depreciation in value, if any, of the remaining lot, caused by the excavation made by the railroad company on the lots that it took from Mr. B., and in your de- liberations you must consider all the evidence that you believe credible, and give it such weight as in your judgment you deem it entitled to.'° "Hoyt V. Chicago &c. R. Co., 117 ""Blincoe v. Choctaw &c. R, Co., Iowa 296, 90 N. W. 724. 16 Okla. 286, 83 Pac. 903, 4 L. R. A. °"St. Louis &c. R. Co. V. Fowler, (N. S.) 890. 142 Mo. 670, 44 S. W. 771. CHAPTER LI. EVIDENCE. Section Section 517. Burden of proof. . 522. Proof of identity. 518. Circumstantial evidence. 523. Effect of failure to call material 519. Expert and opinion evidence. witness. 520. Conflicting evidence. 523a. Positive and negative testimony. 521. Care in consideration of verbal statements. § 517. Burden of proof. — (1) The court instructs, the jury that in this case the affirmative of the issues is upon the plaintiff to prove the material allegations of his complaint and reply. On the other hand, the affirmative of the issues is upon the defend- ants to establish the matters and things alleged in their affirm- ative defense.^ (2) The court instructs the jury that a preponderance of the evidence means the greater weight of evidence; but this is not determined solely by the greater number of witnesses testi- fying in relation to any particular fact or state of facts. It means that the testimony on the part of the party on whom the burden rests must have greater weight in your estimation ; have a more convincing effect than that opposed to it. If, in your opinion, the testimony on any essential point, as hereinbefore explained in these instructions, is evenly balanced, then the party oh whom the burden rests to prove the same by a preponderance of the evi^ dence must be deemed to have failed in regard thereto.^ (3) The court instructs the jury that in this case you will have before you the complaint which the plaintiff has drawn, and you must find that its allegations have been proved by a fair preponderance of evidence ; that all the substantial statements in 'Lindblom v. Fallett, 145 Fed. 805, "Newhouse Mill &c. Co. v. Keller, 76 C. C. A. 369. 103 Ark. 538, 146 S. W. 855. 586 587 EVIDENCE. § 5 1 7 the complaint upon which this case is rested have been proved by a fair preponderance of evidence. That means, by the better or weightier evidence, the more convincing evidence. It means that, weighing all the evidence in the case, you are to decide in favor of that person toward whose side the scales turn. As I have said at the outset, if you find that the plaintiff has proved the material allegations of her complaint by a fair preponderance of evidence, there can be no question in law that this defendant is liable. And, on the other hand, if you find that this accident occurred as defendant claims it occurred, because this plaintiff stepped from a moving trolley car and thereby her injuries were occasioned, there can be no doubt she failed to exercise due care, and that she contributed to her accident by her own negli- gence, and therefore she can not recover. And upon the facts as you shall find them, your verdict must be rendered according to the law, as the court stated it. You are concerned with the evidence given to you upon the witness stand here. You are to consider it and weigh it carefully, all of it, each part in relation to every other part, and reach your conclusion by determining to which side a fair preponderance of the evidence turns.^ (4) The court instructs the jury that the burden of proof in this class of cases is upon the party holding the affirmative ; and if the jury find that the evidence bearing upon the plaintiff's case is evenly balanced, or that it preponderates in favor of the defendant, then the plaintiff can not recover, and the jury should find for the defendant.* (5) The court instructs the jury that if they find, from the evidence, that the plaintiflf has made out his case, by a preponder- ance of the evidence, as laid in his declaration, then the jury must find for the plaintiff. ° (6) The court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff and it is for him to prove his case by a preponderance of the evidence, still if the jury find that the evidence bearing upon the plaintiff's case pre- ' Brodie v. Connecticut Co. " West Chicago St. R. Co. v. Scan- (Conn.), 87 Atl. 798. Ian, 168 111. 34, 48 N. E. 149. *Horne v. Walton, 117 III. 130, 7 N. E. 100. §517 INSTRUCTIONS FORMS. 588 ponderates in his favor, although but slightly, it would be suffi- cient for the jury to find the issues in his favor.^ (7) The court instructs the jury that plaintiff must establish his case by a preponderance of the evidence. This preponder- ance, however, is not alone necessarily determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of the evidence is, the ju-ry should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the case ; the relation or connection, if any, between the witnesses and the parties; the apparent consistency, fairness and congruity of the evidence; the probability or improbability of the truth of their several statements in view of all the other evidence, facts and cir- cumstances proved on the trial; and from all these facts de- termine upon which side is the weight or preponderance of the evidence.' (8) The court instructs the jury that the plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.* (9) The court instructs the jury that the preponderance of evidence in a case is not alone determined by the number of wit- nesses testifying to a particular fact or state of facts. In de- termining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which ° Taylor v. Felsing, 164 111. 331, 45 consideration in determining where N. E. 161. the preponderance of the evidence 'Objection was made that this in- is." Deering v. Barzak, 227 111. 71, struction invaded the province of the 81 N. E. 1. jury in directing the jury how to de- ' Pierson v. Lyon, 243 111. 370, 90 termine the question of preponder- N. E. 693; Chicago Consolidated ance without allowing them to exer- Trac. Co. v. Schritter, 222 111. 364, 78 cise their own discretion. "We do N. E. 820; Chicago City R. Co. v. not regard the instruction as an in- Nelson, 215 111. 436, 74 N. E. 458; vasion of the province of the jury. Taylor v. Felsing, 164 111. 331, 45 N. The instruction very properly directs E. 161 ; Chicago City R. Co. v. the attention of the jury to a number Bundy, 210 111. 39, 71 N. E. 28. of elements that should be taken into 589 EVIDENCE. § 5 1 7 they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbabihty of the truth of their several state- ments, in view of all the other evidence, facts and circumstances proved on the trial, and from all these circumstances determine upon which side is the weight or preponderance of the evidence." (10) The court instructs the jury that the burden rests upon the plaintiff of proving the material facts averred in the com- plaint. Whether the facts are material, however, need not cause you trouble, as that is a question of law for the court. You find what facts have been proved, and in determining what have been proved it will be necessary for you to consider v/hat facts have been attempted to be proved, and by whom, that is, by which party. If the plaintiff asserts a fact, and offers evidence to prove it, and the defendant offers evidence to disprove it, you will then weigh all of the evidence on that point. If you find that the evidence of the plaintiff outweighs that of the defendant, you should find the facts proved, and it should become a part of your verdict. If the evidence of the defendant upon that point out- weighs that of the plaintiff, you will leave that fact out of your verdict. And it may arise that you will find the evidence equally balanced upon a fact asserted by the plaintiff, that is, you will find that after you have carefully considered all of the evidence upon such facts upon both sides, you are unable to determine which side has the preponderance. In such case you should omit the fact asserted from your verdict. These remarks apply to the facts averred, and upon which proof was offered by the plaintiff; the same will apply to facts asserted by the defendant. After plaintiff has made proof of facts to entitle her to recover, her recovery may be defeated by other facts proved which avoid the effect of the facts so proved by the plaintiff. These facts are averred by the defendant and constitute a part of the de- fense. The burden of proving such facts is upon the defendant by a fair preponderance of the evidence.^" (11) The court instructs the jury that "by a preponderance of the evidence" does not necessarily mean by the greater num- ' Chicago Union Trac. Co. v. Yarus, " Pittsburgh &c. R. Co. v. Burton, 221 III. 641, 77 N. E. 1129. 139 Ind. 5S7, 2,7 N. E. ISO. § 5^7 INSTRUCTIONS FORMS. '59O ber of witnesses, but by it is meant the degree or condition of the proof, which, considered in the light of all the evidence in the case, seems to be most reasonable, the most consistent and the most satisfactory/^ (12) The court instructs the jury that the burden of proof is upon the plaintiff to maintain the issue in this case on his part by a preponderance of the evidence as to whether or not the plaintiff was employed by the defendant to perform the services sued for and testified to by the plaintiff; and unless the jury believe from the evidence that the plaintiff has so maintained the said issue they will find a verdict for the defendant.^^ (13) The court instructs the jury that, by the expression used in the instructions in this case, "preponderance or greater weight of the evidence", is not meant the mere number of witnesses who have testified for or against a given question of fact in issue before you. Such expression means that, after you have fully and carefully considered all the evidence in the case, you should decide any one of the questions of fact in favor of the party with whom you find the proof on such fact to have the most con- vincing effect upon your minds, after you have fully considered all the facts and circumstances in evidence bearing upon such question.^^ (14) The court instructs the jury that the burden is on the plaintiff to prove all the matters and facts necessary to entitle him to recover by a preponderance of the evidence.^* (15) The court instructs the jury that, I have already in- structed you that the burden of proof is upon the plaintiff to establish the allegations of the complaint; that is, the negligence and the loss. If, in the consideration of the evidence that has been introduced upon such an issue as that, should you find the ""We do not think that there is use of the word "fair" should be any error in the instructions of the avoided, but it is not necessarily re- court to the jury. They are all ap- versible. Kirchner v. Collins, 1S2 plicable to the issues under the evi- Mo. 394, 53 S. W. 1081. dance on the trial in this case.'' Kan- " Holton v. Cochran, 208 Mo. 314, sas Loan &c. Co. v. Love, 4 Kans. 106 S. W. 103S. App. 188, 45 Pac. 953. " Missouri &c. R. Co. v. Coker "The instruction originally had the (Tex. Civ. App.), 143 S. W. 218. words "fair preponderance." The 591 EVIDENCE. §519 evidence to be evenly balanced, it would be your duty to resolve that point in favor of the defendant. So, too, where the burden of proof should be upon the defendant, as relating to the affirma- tive defense that he alleges, should you find that all the evidence was evenly balanced in favor of the plaintiff and the defendant upon any such issue, where the burden lay upon the defendant, it would be your duty to resolve such issue in favor of the plain- tiff."* §518. Circumstantial evidence. — (1) The court instructs 'the jury that while the plaintiff must prove his case by a pre- ponderance of evidence, still the proof need not be the direct evidence of persons who saw the occurrence sought to be proved, but facts may also be proved by circumstantial evidence, that is, by proof of circumstances, if any, such as give rise to a reason- able inference in the minds of the jury of the truth of the facts alleged and sought to be proved, provided such circumstances, together with all the evidence in the case, constitute a prepon- derance of evidence.^" (2) The court instructs the jury that in determining what facts are proved in this case they should carefully consider all the evidence given before them, with all the circumstances of the transaction in question as detailed by the witnesses ; and they may find any fact to be proved which they believe may be right- fully and reasonably inferred from the evidence given in the case, although there may be no direct evidence or testimony as to such fact." (3) The court instructs the jury that circumstantial evidence, when strong and convincing, is often the most satisfactory from which to draw conclusions of the existence or nonexistence of a disputed fact.^' §519. Expert and opinion evidence.— ^(1) The court in- structs the jury that so far as the expert testimony is concerned, "a Foster V. Pacific Clipper Line, 30 "North Chicago St. R. Co. v. Wash. 515, 71 Pac. 48. Rodert, 203 111. 413, €7 N. E. 812. "^ United States Brewing Co. v. ''Wheelan v. Chicago &c. R. Co., Stoltenberg, 211 111. 531, 71 N. E. 85 Iowa 167, 52 N. W. 119. 1081. § 520 INSTRUCTIONS FORMS. 592 you will consider that and treat it in the same manner as you would treat any of the other testimony in the case. The simple fact that it was offered by experts does not compel you to take their testimony in preference to any other, but you should give the testimony of the expert witnesses the same right, the same con- sideration, everything else being equal, as that of any other wit- nesses.^* (2) The court instructs the jury that they are not bound to accept as true the opinions of the doctors who have testified as experts in this case, but may give said opinions and each of them such weight as the jury may deem them entitled to, or altogether disregard such opinions, in so far as the jury, from all the facts and circumstances in evidence, may believe such opinions unreasonable.^" (3) The court instructs the jury that, under the law, the opinions of expert witnesses are admissible in evidence and are to be given such weight and value as the jury may think right and proper under the circumstances. Tlie value of an expert opinion depends not only upon the qualifications and experience of the witness, but upon the facts which he takes into considera- tion and upon which he bases his opinion. If the facts as- sumed, and which are made the basis of the opinion, are not established by the proof, then the opinion would have no basis upon which to rest and would be of no value ; and in weighing such opinions the jury must look to see whether the facts as- sumed are established by the proof or not, and you can not take the facts assumed by the witness to be true simply because they are so assumed, but you will look to the proof to determine whether they are proved or not.^^ § 520. Conflicting evidence. — The court instructs the jury that in this case you accept the law as given you by the court, but you are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to their testimony. If there is real or apparent conflict in the evidence, it is your duty " Anthony v. Cass County Home '" Day v. Emery &c. Dry Goods Co., Tel. Co., 165 Mich. 388, 130 N. W. 114 Mo. App. 479, 89 S. W. 903. 659. " Holton V. Cochran, 208 Mo. 314, 106 S. W. 1035. 593 EVIDENCE. § 521 to reconcile that conflict so that all may stand if it can be done, that it is your province to determine what you will accept as true and what you will reject as false. In determining what weight you will give to the testimony of a witness, you may consider all his evidence, whether it be reasonable or unreasonable, sus- tained or unsustained, whether it is corroborated by other cred- ible evidence, the knowledge which the witness has of the facts about which he testifies, the intelligence of the witness, whether or not the witness has been impeached, his opportunity for know- ing or recollecting the facts about which he testifies, his manner upon the stand, any bias or prejudice he may have exhibited to- ward or against plaintiff or defendant, his interest, if any, in the suit, and any and all other facts and circumstances in evidence, which in your minds go to increase or diminish the weight of such evidence.^^ §521. Care in consideration of verbal statements. — (1) The court instructs the jury that testimony with regard to verbal statements should be received with great caution. The evidence, consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake, in consequence of the person speaking not having clearly expressed his own mean- ing, or in consequence of the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the person in fact did say. This kind of testimony should be scanned closely. Where the precise words are shown and proved, by intelligent and reliable witnesses, they often lead to satisfactory conclusions. Where a witness can only give what he thinks is the substance of what was said, the weight to be given to such testimony depends largely upon the strength of memory and intelligence of the wit- ness.^^ (2) The court instructs the jury that verbal admissions ought to be received with great care.^* ^ Vandalia R. Co. v. Baker, SO Ind. " The foregoing instruction was App. 184, 97 N. E. 16. substituted by the court for a re- '^ Ellis V. Republic Oil Co., 133 quested instruction, which was in the Iowa 11, 110 N. W. 20. following language: "Admissions 38 — Branson's Inst. § 522 INSTRUCTIONS— FORMS. 594 § 522. Proof of identity. — The court instructs the jury that when the question of identity of persons arises in a case the mere identity of names is not sufficient, but the evidence must go further and show by other facts and circumstances, taken in connection with the name, the identity of the person referred to.^'* § 523. Effect of failure to call material witness. — The court instructs the jury that the failure to call an available witness possessing peculiar knowledge concerning facts essential to the party's cause, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness be naturally favorable to the party's contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference, sometimes denominated a "strong presumption of law," that the testimony of such uninter- rogated witness would not sustain the contentions of such party in the suit. This rule applies with peculiar force to a party to a suit who refuses to testify, and it is applicable to F. in this § 523a. Positive and negative testimony. — (1) The court instructs the jury that, positive testimony of a smaller number of witnesses that they saw or heard a given thing occur, will out- weigh the negative testimony of a greater number of witnesses that they did not see or hear it, provided the witnesses are equally credible; but in connection with this instruction should be con- sidered the relative means or opportunity of the several witnesses are the lowest class of proof and proof. If there are admissions which should be received and considered by are of this class, it is not from any the jury with great caution." The inherent defect in their nature as ad- substituted instruction was held to missions that they become so, but by be correct. "While the law, from the reason of extraneous circumstances nature of the proof, enjoins great which qualify them." Tozer v. caution upon juries in receiving the Hershey, 15 Minn. 257. evidence of admissions as true and in ^° Blunt v. Houston Oil Co. (Tex. determining the weight to be given Civ. App.), 146 S. W. 248. to the admission if true, we know of '"' Fisher v. Travelers' Ins. Co., 124 no rule which places admissions of Tenn. 450, 138 S. W. 316, Ann. Cas. this character as the lowest class of 1912 D, 1246. 595 EVIDENCE. § 523a to see or hear the occurrence, and it should be carefully kept in mind that it only applies when the witnesses are equally credible.^' (2) The court instructs the jury that, it is a general rule of evidence that affirmative or positive evidence is stronger than negative evidence. In other words, that the testimony of a credible witness that he heard the elevator bell ring when the elevator moved upward immediately before the happening of the injury to the plaintiff is stronger than that of an equally credible witness who with the same opportunities testifies that he did not hear the elevator bell ring at the same time. Where two wit- nesses directly contradict each other, and the veracity of neither is impeached, the presumption of truth is in favor of the witness who swears affirmatively. You are instructed, therefore, that the positive testimony of a single witness who testifies that the bell rang on the occasion in question is entitled to more weight than that of two witnesses equally credible, who testify nega- tively, that they did not hear it ring. Of course, you must bear in mind in applying this rule that much depends upon the circum- stances, such as the opportunity of the witness for knowing, and the attention which they gave or which it appears to you from the evidence they probably gave, under all the circumstances shown. The mere fact that one witness testifies contrary to another does not discredit either. The credibility of all witnesses, as I said before, and the weight to be given to the testimony of each, is wholly for your consideration and determination.^^ (3) The court instructs the jury, for the proponent, that, while there are certain presumptions of law in this as in all other cases, still all presumptions yield to proof, and where there is positive testimony on any subject, the jury will try this case on such testimony, and not on any presumptions.^' "Draper v. Baker, 61 Wis. 450, 21 proving the use of the words "pre- N. W. 527, 50 Am. St. 143. sumption of truth," refused to hold ^Anderson v. Horlick's Malted this instruction misleading). Milk Co, 137 Wis. 569, 119 N. W. 342 " Hitt v. Terry, 92 Miss. 671, 46 So. (the Supreme Court, while disap- 529. CHAPTER LII. FALSE ARREST AND FALSE IMPRISONMENT. Section Section 524. What amounts to false impris- 530. Arrest by officers of railroad onment. company. 525. Probable cause — Malice. 531. Elements of damages. 526. Manner of arrest. 532. Arrest by putting person in fear 527. Arrest without warrant. by threats. 528. Arrest on void process. 533. Wrongful incarceration in luna- 529. Place of arrest. tic asylum. §524. What amotints to false imprisonment. — (1) The court instructs the jury that before you can find against the de- fendant for false imprisonment, you must be reasonably satisfied that the arrest of the plaintiff was illegal.'- (2) The court instructs the jury that false imprisonment is an unlawful arrest and detention of the person of another, either with or without a warrant of arrest. It consists in an unlawful restraint upon a man's person, or control over the freedom of his movements, by force or threats ; and every such restraint or confinement is unlawful, where it is not authorized by law. The actual detention of the person, and the unlawfulness thereof, constitute the trespass, the gravamen being the unlawfulness of the imprisonment; and for every such imprisonment the officer making the arrest is liable in damages.^ (3) The court instructs the jury that if you find from the evidence that the plaintiff remained in the store of Com- pany, on the evening and night of the day of , 19 — , voluntarily and of her own free will and accord, this does not constitute an unlawful imprisonment, but submission to the threatened and reasonably apprehended use of force is not to be ^ Sanders v. Davis, 153 Ala. 375, 44 ' Petit v. Colmery, 4 Penn. (Del.) So. 979. 266, 55 Atl. 344. 596 597 FALSE ARREST AND IMPRISONMENT. § 525 considered as a consent to the restraint by the one claiming to have been imprisoned.' § 525. Probable cause — Malice. — ( 1 ) The court instructs the jury that the question of whether the arrest was malicious and without probable cause does not depend upon whether the plaintiff was in fact guilty as charged, but whether the prosecutor acted in good faith, and on a reasonable appearance of cause he entertained a reasonable belief that the plaintiff, E. S., was guilty. The mere fact that the prosecution was abandoned, or nol pros'd, if you believe it was abandoned or nol pros'd, is not prima facie evidence of want of probable cause.* (2) The court instructs the jury that although you may be- lieve that the defendant caused the arrest of plaintiff from malice, yet you can not find for the plaintiff, unless you are also reasonably satisfied that he had no reasonable cause to believe the plaintiff guilty of larceny.^ (3) The court instructs the jury that an improper motive may he inferred from a wrongful act based upon no reasonable ground, and that such improper motive constitutes malice in law. And to constitute such malice it is not necessary that such wrongful act should be prompted by anger, malevolence, or vindictiveness, but such inference of malice may be removed by the evidence in the case.° (4) The court instructs the jury that the burden of proof is upon the defendant to prove that he sought counsel with an hon- est purpose to be informed as to the law, and that he was in good °The first part of the above in- litigant is entitled to have his theory struction, as far as "but submission of the case, within the pleadings and to the threatened and reasonably ap- proof, fully and fairly submitted to prehended," etc., was requested by the jury, but he can not complain if the defendants, but the request was the theory of the other side is sub- modified and given by the court as mitted at the same time." Bingham in the foregoing form. Objection v. Lipman, 40 Ore. 363, 67 Pac. 98. was made to the modification on the * Sanders v. Davis, 153 Ala. 375, ground that the defendants were en- 44 So. 979. titled to have their theory of the case ° Sanders v. Davis, 153 Ala. 375, submitted to the jury "without any 44 So. 979. connection with other matters." The "Bolton v. Vellines, 94 Va. 393, 26 Supreme Court of Oregon says : S. E. 847, 64 Am. St. 727. "The rule is unquestioned that every § 5^6 INSTRUCTIONS FORMS. 598 faith guided by such advice in causing the arrest of the plain- tiff, and that whether or not defendant did, before instituting the criminal proceedings, make a full, correct, and honest dis- closure to his attorney or attorneys of all the material facts bear- ing upon the guilt of the plaintiff, of which he had knowledge, and whether, in commencing such proceedings, the defendant was acting in good faith upon the advice of his counsel are questions of fact to be determined by the jury from all the evi- dence and circumstances proved in the case. And if the jury believe, from the evidence, that the defendant did not make a full, correct and honest disclosure of all such facts to his coun- sel, but that he instituted the criminal prosecution from a fixed determination of his own rather than from the opinion of coun- sel, then such advice can avail nothing in this suit.' § 526. Manner of arrest. — The court instructs the jury that if you find that the defendants herein were acting in good faith under the process that was in their hands, and used no more force than was necessary in the discharge of their duty, and if you also find that they were resisted by the plaintiff and his fam- ily, and were arrested for obstructing an officer in the discharge of his duty, and that while under said arrest they were dealt with humanely and fairly, then, and in that event, your verdict should be for the defendants, and you should so find.* § 527. Arrest without warrant. — The court instructs the jury that it is the duty of a sheriff arresting a person without a warrant for an offense committed within his view, or when he arrests a person without a warrant upon information, when he has reasonable or probable cause to believe that such person has committed a felony, in either case without delay, and as soon as he can reasonably do so, to take the person whom he has placed under arrest before some magistrate, to be charged with such of- fense by affidavit. Such an arrest can only be made and the person held for such purpose. If the officer shall fail to take the 'Jones V. Morris, 97 Va. 43, 33 S. 'Barnes v. Davis, 30 Okla. Sll, 120 E. ill. Pac. 27S. 299 FALSE ARREST AND IMPRISONMENT. § 529 person so arrested before a magistrate, as required by law, then he is Hable to such person in an action for damages.'' §528. Arrest on void process, — (1) The court instructs the jury that if they believe from the evidence that the act of O. in signing the warrant caused the plaintiff to be arrested under a void process, then they must find for the plaintiff.^" (2) The court instructs the jury that if they believe that O.'s signing the warrant did not cause S. to omit to sign it, then, if you believe that O., having knowledge of the void condition of the warrant, continued to prosecute the plaintiff, then the defend- ant, O., is liable, and your verdict must be for the defendant." (3) The court instructs the jury that although you may be- lieve that O.'s signing the warrant did not cause S. to omit sign- ing it, yet, if you further believe that O. continued to prosecute the plaintiff with full knowledge of the void condition of the warrant, the plaintiff is entitled to recover.^^ (4) The court instructs the jury that if they believe from the evidence that the fact that O. signed the warrant caused the jus- tice of the peace to issue the warrant without signing it, they must find for the plaintiff.^^ § 529. Place of arrest. — The court instructs the jury that if they shall find from the evidence that at the time the witness B. first undertook to arrest the plaintiff he was in the public high- way, and that the actual arrest was made by said B. on the grounds in the use and occupancy of the defendant, in the course of the pursuit of the plaintiff by said B. begun on said public highway not in the course of the performance of his duties as an employe of the defendant (if the jury so find), then their verdict should be for the defendant." •Harness v. Steele, 159 Ind. 286, 64 "Gates v. McGlaun, 145 Ala. 656, N. E. 875. For other similar instruc- 39 So. 607. tions, see Martin v. Golden, 180 Mass. " Gates v. McGlaun, 145 Ala. 656, 549, 62 N. E. 977; Bingham v. Lip- 39 So. 607. man &c. Co., 40 Gre. 363, 67 Pac. 98. ^' Gates v. McGlaun, 145 Ala. 656, " Gates V. McGlaun, 145 Ala. 656, 39 So. 607. 39 So. 607. " Philadelphia &c. R. Co. v. Craw- ford, 112 Md. 508, 77 Atl. 278. § S30 INSTRUCTIONS FORMS. 600 §530. Arrest by officers of railroad company. — (1) The court instructs the jury that if they find from the evidence that B. on the night of , was an officer, agent, or employe of the defendant company and in charge of the station, grounds, and approaches in the control and occupancy of said defendant at H., and shall further find that the plaintiff at the time of his arrest, as testified to in this case, was on ground and approaches to said station that were in the control and occupancy of said defendant, and was a passenger of said defendant and behaving all the while in an orderly and proper manner, then it is for the jury to decide from all the facts and circumstances in the case whether or not when the plaintiff was so arrested, as testified to in this case, the said B. in making said arrest was acting as an officer, agent, or employe of the defendant, and if they shall find that said B. in making said arrest of the plaintiff was acting as an officer, agent or employe of said defendant within the scope of his employment, then the verdict of the jury shall be for the plain- tiff.^= (2) The court instructs the jury that if they believe from the evidence that the plaintiff on the day of , in the year , was on one of the approaches to the station of the defend- ant at H., and that said approach was in the occupancy and under the control of the defendant, with the intention of taking pass- age on one of its trains, he was then a passenger of the defend- ant and it was bound to exercise all reasonable care to protect him from personal insult, injury, and abuse; and if they shall find that the plaintiff while he was on said approach to the de- fendant's station for the purpose aforesaid was without any rea- sonable cause assaulted by one of the defendant's officers, agents, or employes while acting within the scope of his employment, then the plaintiff is entitled to recover/" § 531. Elements of damages. — (1) The court instructs the jury that if they shall find for the plaintiff, then in assessing the damages they are to take into consideration the nature of the force applied to the plaintiff, C, his sense of indignity and hu- " Philadelphia &c. R. Co. v. Craw " Philadelphia &c. R. Co. v. Craw- ford, 112 Md. 508, 11 Atl. 278. ford, 112 Md. 508, 11 Atl. 27& 60I FALSE ARREST AND IMPRISONMENT. §531 miliation, and award him such sum as under all the circum- stances of the case they may deem a fair and reasonable compen- sation therefor/' (2) The court instructs the jury that the sense of shame and mortification, of wrong and of outrage, for which the plaintiff may recover, is not limited to the actual time he was under re- straint, but includes all such sense of shame, mortification, wrong, and outrage as it can be said the average man under like circum- stances might have expected to experience for all time, arising from such arrest and detention as has been shown. No witness has placed a money standard on injured feelings, humiliation, sense of outrage, and mental suffering arising from an unlawful arrest and imprisonment, and no witness can do so. To do that is solely your province. The law has no other remedy for an action for wrong than to compensate, so far as it can by way of money, for the injury done by one man to another. The facts and circumstances surrounding the doing of the unlawful act are to be considered by you, and you are to consider as best you can, from all the evidence, what sense of shame, mental suffer- ing, humiliation, and sense of courage the average man under similar circumstances might reasonably be expected to sustain, and award the plaintiff the amount thereof as his damages in this case.^* (3) The court instructs the jury that if you find from the evidence that P. and H. went upon said premises under said proc- ess, and in proceeding to execute the same acted tyrannically and oppressively, and arrested plaintiff, without cause or reason, and kept him in prison for any length of time, and that the action was without probable cause, and that while so acting they detained the plaintiff and carried him to S., and restrained and abused him, without cause or reason, then, in that event, you should find for the plaintiff, and give to him such damages as you may think he is entitled to under the proof for his actual detention, imprisonment and disgrace; and you may go further, if you so find that the defendants acted so as to deserve it, a damage, known as smart money or punitive damages, to be placed upon " Philadelphia &c. R. Co. v. Craw- " Mumford v. Starraont, 139 Mich, ford, 112 Md. 508, 11 Atl. 278. 188, 102 N. W. 662, 69 L. R. A. 350. § 532 INSTRUCTIONS FORMS. 602 the defendants as exemplary damages, to teach them a lesson in their future conduct." (4) The court instructs the jury that if you believe from the testimony that the defendant, A. J., requested or directed the officer J. S. to arrest and confine said plaintiff in jail, then you are instructed that plaintiff is entitled to recover of defendant, J., as damages, such sum as will fairly compensate him for the physical inconvenience, mental anguish, and suffering and hu- miliation of mind, if any, you find he did so suffer as the natural and proximate result of his arrest and imprisonment.^" § 532. Arrest by putting person in fear by threats. — The court instructs the jury that the threat must be such as is calcu- lated to operate upon the person threatened, and inspire a just fear of some injury to his person, reputation, or property, or to the person, reputation, or property of another; and the jury are to consider the age, sex, condition, disposition, or health of the person threatened in determining whether the threat was suffi- cient to have intimidated and prevented such person from moving beyond the bounds in which he was detained.^^ § 533. Wrongful incarceration in lunatic asylum. — The court instructs the jury that the burden of proof is upon the plaintiff to satisfy your minds by a preponderance of the evi- dence that the defendants wrongfully conspired and colluded with each other to have the plaintiff incarcerated in the lunatic asylum, unlawfully and against her will, each defendant acting his part maliciously, wantonly and out of a spirit of reckless dis- regard for the rights and liberties of the plaintiff, and with intent to injure the plaintiff in her reputation and character and standi ing before the people, and that she was in fact thereby damaged, and that, if the evidence fails to satisfy your minds you should find for the defendants upon this allegation in the declaration, '"Barnes v. Davis, 30 Okla. 511, "Meyer v. State (Tex. Cr.), 49 S. 120 Pac. 275. W. 600. "•Joske V. Irvine (Tex. Civ. App.), 43 S. W. 278. 6o3 FALSE ARREST AND IMPRISONMENT. §533 but that should not of itself bar recovery for actual damages, if the jury should believe from the evidence that the plaintiff is en- titled to recover actual damages.^^ "The clause, "but that should not of itself bar recovery for actual dam- ages if the jury should believe from the evidence that the plaintiff is en- titled to recover actual damages,'' was added by the trial court to the requested instruction. "The action of the court was eminently proper. It simply made clear to the minds of the jury, by positive statement, what would have been left otherwise to de- duction or inference on the part of the jury. The charge is absolutely correct, as modified, or added to, by the court." Bacon v. Bacon, Id Miss. 458, 24 So. 96a CHAPTER LIII. FIRES. Section Section 534. Fires set out by threshing en- S37. Fires set out by locomotives — gine. Presumption of negligence. 535. Fires set out by locomotives. 538. Burden of proof of negligence 536. Fires set out by locomotives — in setting out fires. Care as to spark arresters. 539. Damages for destruction of property. § 534. Fires set out by threshing engine. — (1) The court instructs the jury that if you find and believe from the evidence that an ordinarily prudent threshing machine man would not, at the time and place, and under the circumstances shown in the evidence, have used a spark arrester on the engine, then you can not find defendants negligent in failing to use such spark arrester.^ (2) The court instructs the jury that if you believe from the evidence that the fire which destroyed plaintiff's grain was the result of mere accident or casualty, and not of negligence on the part of defendants, then your verdict must be for defendants.^ § 535. Fires set out by locomotives. — (1) The court in- structs the jury that if they believe from the evidence that the plaintiff's building was set on fire by sparks or coals from the de- fendant's engine, and that said sparks or Coals were emitted or dropped from said engine, either because of the defective con- dition or improper construction of said engine, or because of the negligent handling or management of said engine, they will return a verdict for the plaintiff, J. W. S.^ ^Webb V. Baldwin, 165 Mo. App. 'Alabama Great Southern R. Co. 240, 147 S. W. 849. . v. Sanders, 145 Ala. 449, 40 So. 402. 'Webb V. Baldwin, 165 Mo. App. 240, 147 S. W. 849. 604 6o5 FIRES. § 535 (2) The court instructs the jury that if you find from the evidence that the defendant stored and kept in the depot at giant powder or cartridges or other inflammable and combustible materials, when said depot building was defective and unsafe for the storage and keeping of such materials, and that defendant was aware of such facts, or that the defendant did not keep the same with the vigilance and care, and in the charge of such care- ful and proper servants, as a prudent man would have done with the same kind of substances, and that, by reason thereof, the said depot building was burned, and the said giant powder and other substances exploded and destroyed the property of plaintiff by fire or otherwise, they should find for the plaintiff.* (3) The court instructs the jury that if you find from the evidence that the engine which set out the fire in question set out several successive fires on the same day and same trip, this should be regarded as evidence that the engine was not properly con- structed or in good repair or was improperly used.° (4) The court instructs the jury that if you believe from a preponderance of the evidence that the fire which destroyed the property described in plaintiff's petition was directly and proxi- mately caused and occasioned by sparks emitted from one of de- fendant's switch engines, as alleged in plaintiff's petition, you will return a verdict for plaintiffs, unless you further believe from the evidence that defendant exercised ordinary care on said occasion to have said engine provided with one of the best and most ap- proved kind of appliances in use by railway companies for pre- venting the escape of fire from railway engines ; that defendant exercised ordinary care to see that said appliances, if there were such, were in reasonably good repair and condition on said oc- casion to prevent the escape of fire from said engine and that said engine was on said occasion handled with ordinary care and skill to prevent the escape of fire, or unless you find in defendant's favor on the issue of contributory negligence.* * Denver &o. R. Co. v. Conway, 8 negligence or to the objection that the Colo. 1, 5 Pac. 142, 54 Am. Rep. 537. court singled out certain evidence. " The instruction was held not open West v. Chicago &c. R. Co., 11 Iowa to the objection that it went too far 654, 35 N. W.' 479. in saying that the jury should regard ° Womack v. International &c. R. the fact of setting out other fires as Co., 100 Tex. 453, 100 S. W. 1151. § 53^ INSTRUCTIONS FORMS. 6o6 § 536. Fires set out by locomotives — Care as to spark ar- resters, — (1) The court instructs the jury that in a case of this kind, if the plaintiff has reasonably satisfied you from the evidence that the fire was caused by defendant's locomotive, he has nothing to do until the defendant has reasonably satisfied you of each and all of the three following things : First, that so far as regards the throwing of sparks the engine was properly built; second, that in that respect it was not in a bad or defective con- dition; third, that the throwing of sparks was not caused by un- skilful or careless management of the locomotive. And, even should the defendant in its turn reasonably satisfy you of all of the three things above named, yet the plaintiff may by its evidence overcome the evidence of the defendant, and show you that the fire was set out from the engine, either because it was badly built, in bad condition, or badly handled, and if from all the evi- dence in the case you believe that the fire was caused by negli- gence of the railroad your verdict must be for the plaintiff.' (2) The court instructs the jury that if they believe from the evidence that the defendant failed to use ordinary care to pro- vide its locomotive engine from which the sparks may have escaped that caused the fire (if it was so caused) with the best approved spark arresters in general use, or that the agents and employes of the defendant operating and handling said locomo- tive engine failed to use ordinary care to prevent the escape of sparks, then the prima facie case made out (if made out) by proof of sparks escaping and causing the fire has not been rebutted, and, if you so find, you will find for the plaintiff.^ § 537. Fires set out by locomotives — Presumption of neg- ligence. — The court instructs the jury that if you are rea- sonably satisfied from all the evidence in this case that this fire originated by sparks from an engine on the defendant's railroad track and operated by the railroad company, and that these sparks were emitted in unusually large quantities and were unusually large size, then prima facie the cause is attributable to the negli- ' Alabama Great Southern R. Co. v. Tacoma Eastern R. Co., 40 Wash. V. Sanders, 145 Ala. 449, 40 So. 402. 408, 82 Pac. 711. See Phillips v. Durham &c. R. Co., 'Houston &c. R. Co. v. Washing- 138 N. Car. 12, SO S. E. 462; Wick ton (Tex. Civ. App.), 127 S. W. 1126. 6o7 FIRES. § 538 gence of the defendant, either in not having the engine handled with due care and skill, or else in not having proper appliances to arrest the sparks. Now, if you believe, gentlemen of the jury, that under the circumstances as just stated, then the plaintiff would make out his case to that point, and would be entitled to recover, if you should find that those facts are the facts ; that the sparks emitted from the engine in unusually large quantities, un- usually large sparks, did set fire to and burn the plaintiff's prop- erty, the dye house and the contents, then the plaintiff would be entitled to recover.' § 538. Burden of proof of negligence in setting out fires. — (i) The court instructs the jury that if you are reasonably sat- isfied from the evidence in this case that the building was set on fire by the engine of the railroad company, then you will return your verdict in favor of the plaintiff, unless the defendant has reasonably satisfied you from the evidence in the case that the engine was not improperly constructed, nor in defective condition as regards the throwing of sparks of fire, and that the same was skilfully handled as regards the throwing of sparks.^" (2) The court instructs the jury that uncertainty in your minds as to whether the fire was caused by reason of the engine being improperly made, or being in bad condition, or being badly handled in respect to the throwing of sparks, is no reason for failing to find a verdict for the plaintiff ; and it will be your duty to find your verdict for the plaintiff if you believe from the evidence that the fire was caused by either one of those three causes.^^ (3) The court instructs the jury that if upon the whole testi- mony, and after giving the defendant the benefit of the presump- I "Alabama Great Southern R. Co. "Alabama Great Southern R. Co. V. Sanders, 145 Ala. 449, 40 So. 402. v. Sanders, 14S Ala. 449, 40 So. 402. For other similar instructions, see See also McFarland v. Mississippi- Phillips V. Durham &c. R. Co., 138 River &c. R. Co., 175 Mo. 422, 75 S. N. Car. 12, 50 S. E. 462; Wick v. W. 152; Wick v. Tacoma Eastern R. Tacoma Eastern R. Co., 40 Wash. Co., 40 Wash. 408, 82 Pac. 711. 408, 82 Pac. 711; McFarland v. Mis- "Alabama Great Southern R. Co. sissippi River &c. R. Co., 175 Mo. v. Sanders, 145 Ala. 449, 40 So. 402. 422, 75 S. W. 152. § 539 INSTRUCTIONS FORMS. 6o8 tion in his favor to which I have before alluded, you believe, fairly and honestly, that it is more likely to be true that the de- fendant did set fire to these bams of the plaintiff than that he did not, you ought to render a verdict for the plaintiff ; and on the other hand, if you do not so believe, your verdict should be for the defendant/^ §539. Damages for destruction of property. — (1) The court instructs the jury that if they find for the plaintiff, they will assess his damages at the value of the building and such portion of its contents as were wholly destroyed, and at such further amount as will, in the judgment of the jurors, under the evidence in the case, compensate the plaintiff for such damages as he may have suffered by reason of injury by fire to that portion of the building or contents which was not wholly destroyed by fire.^^ (2) The court instructs the jury that if they find from the evidence in the cause that on or about the day of , , the defendants, with the consent of plaintiff, undertook to thresh for plaintiff his crop of wheat and oats and belonging to plain- tiff, if such is the fact, and that while so engaged in threshing the same fire was communicated to some of plaintiff's unthreshed wheat and oats by sparks escaping, if such is the fact, from the steam engine in use by defendants in such threshing, and that plaintiff's said wheat and oats were wholly consumed by fire so communicated, if so the jury find, and that the communication of fire to plaintiff's said wheat and oats and the burning of the same, if so the jury find, was directly caused by the failure, if any, of the defendants to exercise ordinary care either in placing said steam engine with reference to plaintiff's said wheat and oats and the way the wind was blowing, or in operating said steam en- gine without a spark arrester, or in running and operating said steam engine while threshing plaintiff's said wheat and oats, your verdict should be for the plaintiff, and you should assess his damages at such sum or sums as you may find from the evidence in the cause the said wheat and oats so burned, if so the jury find, were reasonably worth at the time and place it was so burned, "Mead v. Husted, 52 Conn. 53, 52 "Alabama Great Southern R. Co. Am. Rep. 554. v. Sanders, 145 Ala. 449, 40 So. 402. 6o9 FIRES. § 539 not to exceed the sum of dollars, and in this connection you are instructed that by ordinary care, as used herein, is meant such care as a person of ordinary prudence would use under like or similar circumstances to those shown in evidence." "Webb V. Baldwin, 165 Mo. App. 240, 147 S. W. 849. 39— Branson's Inst. CHAPTER LIV. FISH. Section 540. Ownership. § 540. Ownership. — (1) The court instructs the jury that fish in water belong to the owners of the land which the water covers, and that the owners of the land covered by the water have the right to recover the value of any fish taken from the water on his own land by any person without the consent of the owner, and, if you find and believe from the evidence that the defendant by means of any drawing of water from the lake purposely drew fish from the water on plaintiff's land, then the plaintiff is en- titled to recover from the defendant the value of the fish, if any, so secured from his land by the acts of the defendant.^ (2) The court instructs the jury that if you find for the plain- tiff, but do not find that his land was injured in its market value from its destruction or impairment of the body of water on his land, but find that he was wrongfully deprived of his fish under the terms of this charge, then you will return a verdict for the plaintiff for the value of the fish taken from his land by the de- fendant.^ ■Fin & Feather Club v. Thomas 'Fin & Feather Club v. Thomas (Tex. Civ. App.), 138 S. W. 150. (Tex. Civ. App.), 138 S. W. 150. 6io CHAPTER LV. FRAUD Section Section 541. What amounts to fraud— Rescis- 546. Negligence of defrauded party. sion. 547. Fraudulent representations in 542. Falsity of representation and sale of lands. reliance thereon by defrauded 548. Fraud against city, party. 549. Sale of diseased animals. 543. Intention to defraud. 550. Methods of proving fraud. 544. Knowledge that representation SSI. Burden of proof of fraud. is false. SS2. Damages recoverable for sale in- 545. Misrepresentation by agent. duced by fraud. §541. What amounts to fraud — Rescission. — (1) The court instructs the jury that fraud is a false statement or state- ments made for the purpose of inducing another to part with money or other valuable things, which statements are calculated to influence the person to whom they are made, and which state- ments do actually deceive the person to whom they are made, and thereby induce him to part with money or other valuable things.^ (2) The court instructs the jury that if you believe from the evidence that there was no unlawful combination or concert of action between J. B. C. and J. B. D. with the purpose of defraud- ing the plaintiff, as a fraud has been heretofore explained to you, then, on the issue of fraud, you will find for the defendants, J. B. C. and J. B. D., unless you find for the plaintiffs under one of the other paragraphs of the court's charge on the question of fraud.^ . , (3) The court instructs the jury that if a party is induced to enter into a contract by false and fraudulent representation and receives a consideration therefor, he may, upon discovery of the 'McDonald v. Smith, 139 Mich. ^Evart v. Dalrymple (Tex. Civ. 211, 102 N. W. 668. App.), 131 S. W. 223. 611 § 542 INSTRUCTIONS FORMS. 6l2 fraud, repudiate or affirm the contract; but before he can bring an action to rescind the party deceived must either return or offer to return, the consideration. That the jury must say whether any consideration or not was returned, and whether any considera- tion was given in any particular instance, and in this instance whether there was a consideration, whether there was anything signed for a consideration, and whether there was any considera- tion at all or not. If so, was it signed upon that consideration? If you find there was consideration, then the consideration should be returned before suit was brought.^* § 542. Falsity of representation and reliance thereon by defrauded party. — (1) The court instructs the jury that it is an essential element in a case of this nature, and it is necessary for the plaintiff to show, that he not only relied upon the state- ments made to him, if you find such statements were made as alleged in his declaration, but that in so relying he was using reasonable diligence, under the circumstances in this case; and, if you do not so find, your verdict must be for the defendant.^ (2). The court instructs the jury that the defendant's claim is that he did not make all the representations imputed to him; that those which he did make were true ; that the representations were not made for the purpose of obtaining credit, but were made in a casual conversation. To entitle the plaintiffs to recover in this action, they must prove, by a fair preponderance of evidence, that the defendant did make to the agent of Dun's Com. Agency, on or about the day of , , the statements he is charged in the plaintiff's declaration with having made, or that he had made some material part of them; that the statements made by the defendant to the Dun's Com. Agency were untrue in fact at the time he made them, or that some material part of such statements were untrue, and that they were made by the defend- ant with the intention and for the purpose of obtaining a standing thereby ; that the agency communicated to the plaintiffs the state- ment so made to it by defendant ; and that the plaintiffs believed such statement to be true, and by reason of such statement were induced to, and did, sell to defendant and give him credit there- 'a Burnett v. Postal Tel. Cable Co., ° Yanelli v. Littlejohn, 172 Mich. 91, 71 S. Car. 146, SO S. E. 780. 137 N. W. 723. 6l3 FRAUD. § 542 for, and that they would not have done so had he not made such statements.* (3) The court instructs the jury that if you believe from the evidence that the real estate in question was purchased on the personal representations of the defendant, and such representa- tions were false as to value and improvements, and the plain- tiff did not know the land and had no opportunity to examine it and was prevented from examining the property or making in- quiries as to its condition or value by a trick or fraud of de- fendant, the measure of damages that the plaintiff is entitled to recover is the difference in value between the land as represented and as it actually is.° (4) The court instructs the jury that before plaintiff can recover in this action, it must establish by a preponderance of the evidence, as to one or all of its first three claims as explained in the foregoing instruction : First, that the representation or representations as charged in the petition were made by H. to A. ; second, that the representations were false ; third, that A. believed the representations to be true ; fourth, that A., in making the purchase, relied upon the representations, and was only in- duced to make the purchase because of the same ; and, fifth, that, for the reason the cattle were not as represented, plaintiff has suf- fered damages. And if you believe from the evidence that plaintiff has made out his case, as herein explained, as to part, but not as to all three, of his said claims for damages, then you will allow him damages accordingly, measured as hereinafter explained, but, if it has not made out its case as to either of said three claims, then you will find for the defendant.^ *Hinchmanv. Weeks, 85 Mich. 535, Chingren, 111 Iowa 437, 82 N. W. 48 N. W. 790. For other instructions 934. on fraudulent representations, see ° Farley v. Weiss, Td Nebr. 402, 107 Thompson v. Randall, 28 Ky. L. 716, N. W. 561. For similar instructions, 90 S. W. 251 ; Schoefield Gear &c. Co. see Thompson v. Randall, 28 Ky. L. V. Schoefield, 71 Conn. 1, 40 Atl. 1046. 716, 90 S. W. 251 ; McMillan v. Fraudulent sale of corporate stock, Reaume, 137 Mich. 1, 100 N. W. 166, see Drake v. Holbrook, 28 Ky. L. 109 Am. St. 666. 1319, 92 S. W. 297. Fraudulent real ° Hitchcock v. Gothenburg Water estate transaction, see Connors v, Power &c. Co., 4 Nebr. (Unof.) 620, 95 N. W. 638. § 542 INSTRUCTIONS FORMS. 614 (5) The court instructs the jury that if you find that these representations were made, and that they were false, and that the defendants, or one of them, knew them to be false, and that the plaintiff relied upon them, then there would be another question for you to determine. The plaintiff would be entitled to recover some damages, and then it would be nec- essary for you to determine what damages the plaintiff should recover.^ (6) The court instructs the jury that if you find from the evidence that before the dissolution of the copartnership between the plaintiff and the defendant the plaintiff requested the defend- ant to make him a list showing the amount of indebtedness not represented by notes owing at said time by the C. B. Works, and that the defendant, S., made out the list read in evidence as showing such indebtedness, and represented to the plaintiff that said list showed all of such indebtedness, and that plaintiff, in' reliance upon the statement of the defendant that such list showed all of such indebtedness of said B. Works, purchased defend- ant's interest in said concern for $ , and for a conveyance of certain real estate of said concern, and for the assumption of all the debts of said concern by the plaintiff, and that plaintiff would not have so purchased defendant's said interest, and would not have assumed all the debts of said concern, had not defend- ant made such statements and list, then you are instructed to find for the plaintiff, and against the defendants, and so say by your verdict.^ (7) The court instructs the jury that for plaintiff to recover, the representations must have been an inducement for, or that plaintiff was induced thereby to make the exchange or trade and such representations must have been false and such falsity con- tributed to damage plaintiff." (8) The court instructs the jury that if however, you believe 'David V. Moore, 46 Ore. 148, 79 'Pitman v. Self (Tex. Civ. App.), Pac. 415. For similar instructions, 127 S. W. 907. see Alexander v. Emmett, 169 111. ° George v. Hesse (Tex. Civ. 523, 48 N. E. 427; Honsucle v. Ruffin, App.), 94 S. W. 1122. See also Alex- 172 Mass. 420, 52 N. E. 538; George ander v. Emmett, 169 111. 523, 48 N. v. Hesse (Tex. Civ. App.), 94 S. W. E. 427; Honsucle v. Ruffin, 172 Mass. 1122. 420, 52 N. E. 538. 6 IS; FRAUD. § 543 from the evidence that in the making of the trade and in the ac- ceptance of the county land plaintiff acted upon his own judgment based upon an examination of the land and flowing well, if any, upon the same, and not upon any representations, if- any, made by T. E. G. to him, then you will return a verdict for the defendant, T. E. G." (9) The court instructs the jury that if you believe from the evidence that on , , the defendant, T. E. G., conveyed to plaintiff, W. H., certain property described in plaintiff's petition, situated in county, , in consideration of plaintiff's con- veying to the defendant certain property in county, , and if you further believe from' the evidence that as an induce- ment for plaintiff to make any exchange of his property with the defendant, the defendant made a false and fraudulent representa- tion to the plaintiff, to the effect that he had just struck a gusher of water; that is, a strong flowing well of water on his county land, if you so find, and that said representation, if any, was material and that plaintiff, W. H., believed said representa- tion, if any, to be true, and did not know and could not, by the exercise of ordinary care, have known, whether said repre- sentation, if any, was true or false, and that the said G. made such representation, if any, to the said H., for the purpose of in- ducing the said H. to make the trade, and accept the county land, if you so find, and that the said H. accepted the county land, relying on said representation — if you so find — then you are instructed to return a verdict for the plaintiff, W. H. ; but if you do not so believe, you will return a verdict for the defendant, T. E. G." § 543. Intention to defraud. — The court instructs the jury that every party must be deemed to have intended the natural and inevitable consequences of his acts, and where his acts are voluntary and necessarily operate to defraud others, he must be deemed to have intended a f raud/^ "George v. Hesse (Tex. Civ. "Coursey v. Morton, 132 N. Y. App.), 94 S. W. 1122. 556, 30 N. E. 231. * "George v. Hesse (Tex. Civ. App.), 94 S. W. 1122. § 544 INSTRUCTIONS FORMS. 6l6 § 544, Knowledge that representation is false. — The court instructs the jury that if you find that the defendant made such representations as to the value of said bank stock, you will next proceed to consider and determine whether or not the defendant knew at said time that said representations were false. Upon this question you will consider and weigh all of the evidence introduced by both parties upon the subject as to whether or not the defendant had knowledge of the value of said bank stock at said time. You will consider all of the evidence as to the re- lations which defendant sustained to the bank, as vice president and director, the condition of the bank, so far as shown, the op- portunities of defendant for knowing or ascertaining the condi- tion of said bank and the value of its stocks. You will consider the evidence as to the overdrafts in said bank and the losses sus- tained thereby, and whether or not the defendant knew of the same, and, if so, to what extent his knowledge thereof extended. In short, you will carefully consider and weigh all of the evi- dence which will throw any light upon the question as to whether or not the defendant knew the value of the bank stock at the time of said alleged representations, and if you find that the plaintiff has established by a preponderance of the evidence that the defendant knew that said bank stock was not worth one hundred and fifty dollars per share (if you find the said repre- sentation was made by defendant), then you will proceed to the further consideration of the case, but if you do not so find, your verdict will be for the defendant. In this connection you are in- formed that plaintiff must establish that defendant had actual knowledge of the value of said bank stock at said time, and had actual knowledge that it was not worth one hundred and fifty dollars per share at the date of said alleged representation." § 545. Misrepresentation by agent. — The court instructs the jury that if they believe from the evidence that, before and at the time of closing the said transaction, F. A. H. was in the employ of the defendant, to be paid, and that he was thereafter paid, a consideration by the defendant for his services in relation to the said transaction, and that such relationship existing be- " Baker v. Mathew, 137 Iowa 410, 115 N. W. IS. 6i7 FRAUD. § 547 tween the said H. and the said defendant was unknown to the plaintiff, and not ascertained by him until long after consummat- ing the said deal, that then, any representations made by the said H. to the said plaintiff, prior to and at the time of the closing of the said transaction, in relation to the said P. property, were made as the agent and in behalf of the said defendant, and that the defendant is bound by the same, to the same extent as if made by himself.^* § 546. Negligence of defrauded party. — (1) The court in- structs the jury that if the means of knowledge are at hand and equally available to both parties, and the subject-matter is open to inspection of both parties alike, and there are no fiduciary or confidential relations, and no warranty of the facts, the in- jured party must show that he has availed himself of the means of information existing at the time of the transaction before he will be heard to say that he has been deceived by the misrepre- sentations of the other party/° (2) The court instructs the jury that where there is fraud on one side and inattention to reasonably guard his interests on the other, and but for the latter feature the former would have been ineffective, and loss occurs to the inexcusably negligent one, he is without remedy.^" § 547. Fraudulent representations in sale of lands. — The court instructs the jury that the evidence in this case tends to show, gentlemen of the jury, that these parties had some kind of an agreement in regard to locating of the plaintiff on lands which he desired to settle upon and secure as a homestead, and tends to show that the defendant represented that he knew of a piece of land which plaintiff could settle upon, and that he took plaintiff out to this place and showed him the land, and while they were there it appears that there were some indications of mining hav- ing been carried on on the premises, and some conversation took place there about that. Now a statement or conversation which "Cerriglio v. Pettit, 113 Va. 533, 75 '"Roper v. Noel (S. Dak.), 143 N. S. E. 303. W. 130. "Roper V. Noel (S. Dak.), 143 N. W. 130. § 548 INSTRUCTIONS FORMS. 6l8 simply expressed the opinion of the defendant in regard to the question as to whether or not there was a mining claim, or that it had been abandoned or forfeited, would not be a misrepresen- tation of a fact, such as would entitle the plaintiff to recover, if he simply gave a statement as to what he deemed the law in regard to that matter." § 548. Fraud against city. — The court instructs the jury that if you believe the testimony of the witness J. T. in regard to the alleged frauds on the part of the defendant to be true, and that fraud was actually perpetrated against the city by the de- fendant H., in the furnishing of the lumber and receiving the same, then it is your duty to render a verdict in favor of the city and against the defendant for such an amount as you find the overcharges against the city in the various bills may amount to.^' §549. Sale of diseased animals. — (1) The court instructs the jury that if you find from a preponderance of the evidence that defendant sold to the plaintiffs hogs which the defendant knew were infected with cholera, on or about the date stated, and on receipt of such hogs the plaintiffs mingled the same with their other hogs, which were healthy, without knowledge of the diseased condition of the hogs so delivered, and that the hogs delivered communicated such disease to the plaintiffs' other hogs, from which they lost numbers of the delivered hogs and of their own also, then the plaintiffs would be entitled to recover as damages from the defendant the value of the hogs that died, together with such expenses as they were put to in doctoring and caring for such hogs, preventing the spread of the contagion, dis- infecting their pens after the disease had disappeared, and the value of their own services rendered in doing those things, caused proximately by the presence of such disease among their hogs by the communication thereof by defendant's hogs.^* (2) The court instructs the jury that if you find from the evi- dence that the defendant, knowing said hogs to be diseased with " David V. Moore, 46 Ore. 148, 79 "Hobbs v. Smith, 27 Okla. 830, 115 Pac. 41S. Pac. 347, 34 L. R. A. (N. S.) 697. "Battle Creek v. Haak, 139 Mich. 514, 102 N. W. 1005. 6l9 FRAUD. § 550 the cholera, falsely and wilfully represented to plaintiffs that the hogs sold and delivered were sound in health and condition, and good stock hogs, and that the plaintiffs had not examined them prior to the purchase, but relied upon such representations, and that such representations were false, and that said hogs were Infected with cholera, then you are instructed that for such acts of the defendant he is liable to the plaintiff, in addition to the amount of the actual damages which he has sustained, a rea- sonable sum as exemplary damages for the sake of example, and as a punishment for the wrong done.^° (3) The court instructs the jury that if you find from the evi- dence that the hogs sold by defendant to plaintiffs were infected with cholera, but not to an extent to be perceived by either plain- tiffs or defendant, and that such disease arose from infection or contagion communicated by hogs which defendant had but re- cently purchased in the open market, which were in an appar- ently healthy state, which continued to a time subsequent to the sale of exposed hogs to plaintiffs, and that defendant hon- estly supposed his hogs to be free from cholera, then you should find for the defendant.^^ (4) The court instructs the jury that the burden is on the plaintiffs to prove by a preponderance of the evidence, not only that the animals sold were infected with a contagious or infec- tious disease known as cholera, but also that the defendant knew at the time of the selling and delivery of the property that the animals had such disease, or knew facts and circumstances which would cause him to b.elieve that his hogs were so infected and liable to communicate the disease to plaintiffs' hogs, and to die therefrom, and that they did die therefrom and communicated it to other hogs of plaintiffs, so that they died therefrom.^^ § 550. Methods of proving fraud. — The court instructs the jury that, while fraud is not to be presumed without proof, yet fraud, like any other fact, may be proved by proving circumi- stances from which the inference of fraud is natural and irre- "Hobbs V, Smith, 27 Okla. 830, 115 "Hobbs v. Smith, 27 Okla. 830, US Pac. 347. Pac. 347. ""Hobbs V. Smith, 27 Okla. 830, 115 P^c. 347. §55^ INSTRUCTIONS FORMS. 62O sistible; and, if such circumstances are proved, and they are of such a character as to produce in the minds of the jury a con- viction of that fact of fraud, then it must be considered that fraud is proven.^^ § 551, Burden of proof of fraud. — (1) The court instructs the jury that fraud is never presumed, but must be affirmatively proved. The law presumes that all men act fairly and honestly ; that their dealings are in good faith and without intention to wrong, cheat or defraud others, until such presumption is over- come by a preponderance of evidence; and unless you find by a preponderance of the evidence that defendant, W. V. H., had the transactions complained of with plaintiff's agent, B., with the intention and purpose of defrauding plaintiff of its goods, or with knowledge that B. had such purpose and intention, then your verdict will be for the defendant.^* (2) The court instructs the jury that the burden is upon the plaintiff to prove that the defendant and W. J. B. entered into a fraudulent combination to fraudulently deprive it of its goods or property, or some portion thereof; and, unless the plaintiff has made this proof by a preponderance of the evidence, you should find for the defendant.^^ (3) The court instructs the jury that the complaint charges, in effect, that the defendant and its agent, W. J. B., combined and conspired together to defraud plaintiff of its goods and property; and, unless this is proved by a preponderance of the evidence, you should find for the defendant.'" (4) The court instructs the jury that a party alleging fraud must prove it by satisfactory evidence. Fraud will never be im- '"McCluskey v. Cubbison, 8 Kans. Hdw. Co., 82 Ark. 182, 100 S. W. App. 857, 57 Pac. 496. Intent, as re- 882. lating to question of fraudulent na- ^ Crenshaw v. A. F. Shapleigh ture of conveyance, see Stockwell v. Hdw. Co., 82 Ark. 182, 100 S. W. Byrne, 22 Ind. 6; Sherman v. Hog- 882. land, 73 Ind. 472; Bleiler v. Moore, ""Crenshaw v. A. F. Shapleigh 99 Wis. 486, 75 N. W. 953. Hdw. Co., 82 Ark. 182, 100 S. W. "Crenshaw v. A. F. Shapleigh 882. 621 FRAUD. § 552 puted when the facts upon which a charge is predicated are or may be consistent with honesty and purity of intention.^' (5) The court instructs the jury that if, upon the whole evi- dence in the case, the conduct of H., as proven by the testimony, is as consistent with an honest purpose as with a fraudulent one, you should consider that no fraudulent purpose on his part has been proven, and, if not proven, then you should return a verdict in his favor.^* (6) The court instructs the jury that in determining these questions you are instructed that fraud is never presumed, but must always be proven by clear and satisfactory evidence. Ii) this case the burden of proving the alleged fraudulent repre- sentations by a fair preponderance- of evidence is upon the plain- tiff. The evidence in support of the alleged fraudulent repre- sentations must outweigh the opposing evidence.^' (7) The court instructs the jury that you can not find that the defendant falsely or fraudulently made representations to N. S. & Co. from conjecture or mere inference. Fraud must be clearly proven, and the burden of proof is on the plaintiff to establish that fact.^° (8) The court instructs the jury that fraud will never be pre- sumed, but must be proven by the party charging it ; and if the facts upon which it is charged are, or may be, consistent with honesty and purety of intention, then the charge of fraud will fail. To show fraud, the facts must lead naturally and clearly to the facts sought to be established, and must be inconsistent with any other reasonable or probable theory.^"^ § 552. Damages recoverable for sale induced by fraud. — (i) The court instructs the jury that if you find for plaintiff, you will allow him as damages the difference in the fair mar- Jcet value of N.'s land in section and the actual market value of the land shown to plaintiff by W., or what it would be "Prichard v. Hopkins, 52 Iowa '° Shaw v. Gilbert, 111 Wis. 165, 86 120, 2 N. W. 1028. N. W. 188. "^ Connors v. Chingren, 111 Iowa '"a Ley v. Metropolitan Life Ins. Co., 437, 82 N. W. 93. 120 Iowa 203, 94 N. W. 568. '" Schmeisser v. Albinson, 119 Minn. 428, 138 N. W. 775. § 552 INSTRUCTIONS FORMS. 622 worth if it had been as represented to defendant, if he made any representation as to the land, not exceeding the amount claimed in petition."^ (2) The court instructs the jury that if you find the fact of false representation, and that it had induced the trade, and if you further find from the evidence that the reasonable market value of that H. parted with was greater than the reasonable market value of that which he received under the deed from G., then you are instructed to return a verdict for the plaintiff; and, if you so find, then your verdict should be for the difference, if any, between the reasonable market value on the day the trade was consummated of that which H. parted with and the reason- able market value of that which he received under the deed from G.^^ '"Shuttlefield v. Neil (Iowa), 145 "George v. Hesse, S3 Tex. Civ. N. W. 1. App. 344, 115 S. W. 314. CHAPTER LVI. FRAUDULENT CONVEYANCES. Section Section 553. Conveyances to relatives and in- 556. Conveyances with reservations timates. for the family of the debtor. 554. Conveyances between husband 557. Intention. and wife. 558. Knowledge of fraud by grantee. 555. Conveyances to creditors which 559. Transfers in the usual course of hinder, delay or defraud other business, creditors. 560. Inadequacy of consideration. 561. Proof of fraud. §553. Conveyances to relatives and intimates. — (1) The court instructs the jury that the mere fact of relationship be- tween ihe parties to the conveyance attacked is not a badge of fraud. Notwithstanding such relationship, the law presumes good faith and honest intention, and if the evidence is evenly balanced on the question of intent, the transfer must be upheld.^ (2) The court instructs the jury that you may take into con- sideration the kinship, friendship, or intimacy of the parties concerned, to see what their interests were. You may look to the whole dealings with the corporate affairs of P.'s Pharmacy, and from all the circumstances that have been brought out in evidence you are to judge of this question.^ (3) The court instructs the jury that if you find from the evidence that the sum of dollars paid B. & Company in ex- cess of their indebtedness to the bank was actually appropriated to the payment of the just debts of B. & Company, even if those debts were due to members of the B. family, and even if a large number of B. & Company's creditors went unpaid, the sale was not fraudulent, and you should find for the plaintiff.^ ' Shauer v. Alterton, 151 U. S. 607, ' Jackson v. Citizens' Bank &c. Co., 14 Sup. Ct. 442, 38 L. ed. 286. 53 Fla. 265, 44 So. 516. 'Nelson v. Spence, 129 Ga. 35, 58 S. E. 697. 623 § 554 INSTRUCTIONS FORMS. 624 § 554. Conveyances between husband and wife. — (1) The court instructs the jury that whenever a transaction is between husband and wife, and creditors attack it, then the law throws the onus — that is, the burden of proof — on the wife, when she claims the property purchased or received from her husband, to make a fair showing of the whole transaction.* (2) The court instructs the jury that one badge is the non- delivery of the deed to the wife and the delay in recording.. If you are satisfied that those things are all proved, the law says that those are badges of fraud, and the law says, if they are true, that the transaction is a fraudulent transaction, unless they have not been proved. If you conclude that these badges do exist, but that they have been explained to your satisfaction, the jury may then conclude that what looks like a badge of fraud is really no badge of fraud.^ (3) The court instructs the jury that, a husband has the right to deal with his wife. A husband has the right to pay his wife an honest indebtedness in an honest manner. If it is a good-faith transaction, an honest transaction, he has a right to do that. Now, this was a transaction between husband and wife, and the husband had a right to pay that wife, if there was an honest in- debtedness; and if he paid her what was right, and reasonable, and just, he had a right to pay that.* (4) The court instructs the jury that if you shall find from the evidence that S. E. W. was justly indebted to his wife, M. N. W., on the day of , , and if he conveyed the land in question in payment of such indebtedness, or a part there- of, and if the only purpose on the part of M. N. W. in taking such conveyance was to collect her debt, or a part thereof, the conveyance would be valid, even though you may believe S. E. W. was insolvent, and that his purpose in making such conveyance was to hinder, delay, or defraud other creditors, and you should find for M. N. W.^ * Strickland v. Jones, 131 Ga. 409, 263, 88 N. W. 572. See also Minard 62 S. E. 322. V. Stillman, 35 Ore. 259, 57 Pac. 1022. 'McGhee v. Wells, 57 S. Car. 280, 'Whitesides v. Bacon (Tex. Civ. 35 S. E. 529, 76 Am. St. 567. App.), 150 S. W. 301. •Kolbe V. Harrington, 15 S. Dak. 625 FRAUDULENT CONVEYANCES. § 555 (5) The covirt instructs the jury that if you shall find from the evidence that at the date of the deed from S. E. W. to his wife, M. N. W., , , that the said W. was insolvent, as that term is defined heretofore in this charge, and so known to be by his wife, or if she was in possession of facts, if pursued with reasonable diligence, would have led to such knowledge, whether it was a gift or was upon a consideration paid for said land or not by his wife, M. N. W., would render the transfer void, and, if you so find, the effect of the deed would be to hinder, delay, or defraud the creditors of S. E. W., you should find for the plaintiff for the land in question, and canceling the deed to M. N. W.' (6) The court instructs the jury that if H. M. B. was justly indebted to A. G. B., and if the stock of jewelry was transferred to her in payment of such debt, and if the goods transferred were not of greater value than the amount of the debt due, and if the only purpose of B. in taking such jewelry was to collect her debt, she would be entitled to recover the value of the prop- erty so levied on, even though you may believe that the purpose of H. M. B. in transferring the property was to cheat or defraud his other creditors.^ § 5SS. Conveyances to creditors which hinder, delay or de- fraud other creditors. — (1) The court instructs the jury that a sale by a debtor in payment of and in discharge of his debt will be valid where the creditor obtains other property for which he pays cash, if such other property was not more than the debtor was entitled to retain exempt from his other creditors, and no other property was reserved by him as his exemption.^" (2) The court instructs the jury that if you find from the evidence that at the time of the sale T. was informed by B. & Company, or by their attorney, whom he knew, and in whose ' Whitesides v. Bacon (Tex. Civ. going charge was inapplicable to the App.), ISO S. W. 301. facts adduced in proof. It was held, Bruce v. Koch (Tex. Civ. App.), however, to be a "correct proposition 58 S. W. 189. For other like instruc- of law in the abstract." Jackson v. tions, see Roe v. Harrison, 14 S. Car. Citizens' Bank &c. Co., S3 Fla. 265, 625; Stockwell v. Byrne, 22 Ind. 6. 44 So. 516. "In this particular case, the fore- 40 — Branson's Inst. § 556 INSTRUCTIONS FORMS. 626 integrity and veracity he had confidence, that it was the purpose of B. & Company to appropriate the sum of dollars to the payment of their just debts, even though those debts may have been owing to members of the B. family, and there was ngthing in the surrounding circumstances to arouse the suspicion of an ordinarily prudent man, or to put him upon inquiry as to the purpose of B. & Company, then the sale was not fraudulent, even though it may have been the secret intention of B., or of B. & Company, to place the said sum of dollars beyond the reach of other creditors ; and you should find for the plaintiff .^^ (3) The court instructs the jury that an insolvent debtor has the right to transfer his property to one of his creditors in payment of the debt due such creditor, even though the effect of such transfer is to hinder and delay other creditors, pro- viding the creditor receiving such property acts in good . faith and takes the property for the sole purpose of collecting a bona fide debt. The fact that such transfer may have the effect of preventing other creditors from collecting their debts will make no difiference.^^ (4) The court instructs the jury that an insolvent debtor has the right to transfer his property to one of his creditors in pay- ment of the debt due such creditor, even though the effect of such transfer is to hinder or delay other creditors, provided the creditors receiving said property act in good faith, and take the property for the sole purpose of collecting his debt; and the fact that such transfer may have the effect to prevent other cred- itors from collecting their debts will make no difference.^® § 556. Conveyances with reservations for the family of the debtor. — The court instructs the jury that if you believe from the evidence in this case that it was the intention and purpose of J. M. B., in making the sale in controversy to the Bank & Trust Company, to reserve for the benefit of any member of his family to whom he was not bona fide indebted any part of the sum of dollars paid him in cash, then, as a matter of law, "Jackson v. Citizens' Bank &c. Co., "Bruce v. Koch (Tex. Civ. App.), S3 Fla. 265, 44 So. 516. 58 S. W. 189. See also Roe v. Har- "Whitesides v. Bacon (Tex. Civ. rison, 14 S. Car. 625; Stockwell v. App.), ISO S. W. 301. Byrne, 22 Ind. 6. 627 FRAUDULENT CONVEYANCES. § 558 the sale as to the said J. M. B. was fraudulent, but not fraud- ulent as to the bank unless the bank knew or ought to have known of this purpose/* § 557. Intention. — (1) The court instructs the jury that if you find from the evidence that, at the time of the transaction, B. & Company had no intention of hindering, delaying or de- frauding their other creditors, but intended to apply the sum of dollars to the payment of a part of their honest debts, even if not enough to pay all of them, the sale was not fraudulent, and you should find for the plaintiff." (2) The court instructs the jury that in the course of these in- structions, the words "intended" and "intention" have been sev- eral times used. Now, the intent with which an act is done, be- ing the purpose or formulated design in the mind at the time the act is being done, is often incapable of direct proof; but its existence or nonexistence may frequently be ascertained by the jury from just and reasonable inference from all the facts proved. Thus you are instructed that you have in law a right to in- fer that a man intends to do that which he voluntarily does do, and that he intends all the natural, direct, and probable conse- quences of his own acts. Thus, in the case before you, if B., at the time of the making of the mortgage, was insolvent, and knew that he was insolvent, and nevertheless executed a mort- gage to the bank, which act necessarily operated in giving a preference to the said bank, you would have a right to infer that he intended by giving the said mortgage to give said bank a preference.^" § 558. Knowledge of fraud by grantee. — (1) The court in- stiructs the jury that all sales or gifts made by an insolvent debtor, and made for the purpose of hindering, delaying, or de- frauding his creditors, when such intention is known to the pur- " Jackson V. Citizens' Bank &c. Co., Ind. 472; Bleiler v. Moore, 99 Wis. S3 Fla. 265, 44 So. 516. 486, 75 N. W. 953. Relationship, see '"Jackson v. Citizens' Bank &c. Co., Goldberg v. Cohen, 119 N. Car. 59, 25 53 Fla. 265, 44 So. 516. For other in- S. E. 707. structions on intent, as bearing on "Wickwire v. Webster City Sav. the fraudulent character of a convey- Bank, 153 Iowa 225, 133 N. W. 100. ance, see Sherman v. Hogland, 73 § 55^ INSTRUCTIONS FORMS. 628 chaser, or could have been known by the use of ordinary dili- gence, even though the purchaser may have paid a valuable consideration for such property, are void as against the creditors of the vendor." (2) The court instructs the jury that if you believe from the evidence in this case that, during several months preceding the sale to the Bank & Trust Company, J. M. B. was conceal- ing or secreting the moneys taken in in the course of business, or a substantial part thereof, preparatory to attempting a sale of substantially all the remaining property belonging to him, and as a part of a scheme to place his property, or any substan- tial part thereof, beyond the reach of his creditors, then, as a matter of law, the sale to the said J. M. B. was fraudulent; but before you can find it fraudulent as to the bank, you must fur- ther believe that at the time of the sale the bank knew, or should have known, of J. M. B.'s purpose.^' (3) The court instructs the jury that if you find from the evidence that the goods in controversy were transferred by N. B. and accepted by the plaintiffs for the purpose of defrauding the creditors of N. B., then your verdict should be for the de- fendant." (4) The court instructs the jury that if you find and be- lieve from the evidence in this cause that H. M. B. was insolvent, and sold the property in controversy to the plaintiff A. G. B. in payment of a bona fide debt owing by the said H. M. B. to A. G. B., and if you believe that it was the purpose of the said H. M. B. to hinder, delay, or defraud his creditors, and ff you believe that the plaintiff A. G. B. had knowledge of such purpose on the part of the said H. M. B., or had knowledge of such facts or circumstances as would have put a reasonably prudent per- son on inquiry, and that by such inquiry she would have learned of the purpose of said H. M. B., or if she participated in such fraudulent purpose, then in that event you are instructed that "Whitesides v. Bacon (Tex. Civ. "McCluskey v. Cubbison, 8 Kans. App.), 150 S. W. 301. App. 8S7, 57 Pac. 496. For similar " Jackson v. Citizens' Bank &c. Co., instructions, see Bleiler v. Moore, 99 53 Fla. 265, 44 So. 516. 629 FRAUDULENT CONVEYANCES. § 558 such transfer would be fraudulent and void, and the plaintifif in such event could not recover.^" (5) The court instructs the jury that if, at the time the de- fendant took from B. said mortgage, it either knew of the in- solvency of the said B., if he was insolvent, or had reasonable cause to believe that he was insolvent, and that he intended to give the defendant a preference over other creditors, the defend- ant can not now insist on such preference as against the plain- tiff in this suit.'^ (6) The court instructs the jury that if you find from the evi-' dence that, at the time the plaintiff claims he purchased the goods in controversy from W. K. R., said W. K. R. was at- tempting to dispose of his property with the intent to defraud his creditors, or hinder or delay them in the collection of their debts, and that such intention was known to the plaintiff, or that the plaintiff had knowledge of facts sufficient to awaken the suspi- cion of an ordinarily prudent man, and lead him to make in- quiries, and further find that said M. L. R., in the purchase of said goods, did not allow an adequate price therefor, your ver- dict should be in favor of the defendant, although you may find that the debt which the plaintiff claims W. K. R. owed him was a bona fide debt.^^ (7) The court instructs the jury that if you believe from a preponderance of the evidence that the property levied upon in the writ of attachment was the property of G. P. A., at the time said levy was made, and that the transfer introduced in evidence before you is fraudulent, and was made for the sole purpose of defeating the creditors of said G. P. A., and you further find that S. A. knew and participated in said fraud and accepted said bill of sale for said purpose, as alleged, you will find for plaintiffs and so say by your verdict/^ Wis. 486, 75 N. W. 953; Stockwell ^Wickwire v. Webster City Sav. V. Byrne, 22 Ind. 6. Bank, 153 Iowa 225, 133 N. W. 100. '" Bruce v. Koch (Tex. Civ. App.), =^ Morse v. Ryland, 58 Kans. 250, 58 S. W. 189. See also Stockwell v. 48 Pac. 957. Byrne, 22 Ind. 6; Roe V. Harrison, 14 ^ Await v. Schooler (Tex. Civ. S. Car. 625. App.), 131 S. W. 302. § 559 INSTRUCTIONS FORMS. 63O § 559. Transfers in the usual course of business. — The court instructs the jury that where a retail merchant transfers and assigns all his books of account, together with the accounts therein, such transfer is not in the usual and ordinary course of business.^* § 560. Inadequacy of consideration. — ( 1 ) The court in- structs the jury that an "inadequate price" does not mean dif- ference of opinion as to price, but it means such a gross in- adequacy that it is such as to startle the mind of this jury, but no other jury or judge or anybody else.^^ (2) The court instructs the jury that a "grossly inadequate consideration" does not mean simply less than the actual value of the property. It means a consideration so far short of the real value of property as to shock a correct mind.^° §561. Proof of fraud. — (1) The court instructs the jury that you are the sole judges of the weight and sufficiency of the evidence and of the credibility of the witnesses; and, as this is an attack by the attaching creditors of B. & Company on the bona fides of the sale, the burden of proof is on the defendant to sat- isfy you by a fair preponderance of the testimony that the sale was fraudulent, and unless that has been done your finding must be for the plaintiff.^^ (2) The court instructs the jury that while it is true that the law never presumes fraud without some evidence of it, yet, in order to show fraud, direct and positive proof is not required. The jury may infer fraud from the circumstances proven by the evidence, if, in the minds of the jury, they are such as show that fraud was practiced. Fraud may be proven by circumstantial evidence, as well as by direct and positive proof. It may be "^Ballou V. Andrews Banking Co., ="McGhee v. Wells, 57 S. Car. 280, 128 Cal. S62, 61 Pac. 102. See also 35 S. E. 529, 76 Am. St. 567. Along Young V. Kellar, 94 Mo. 581, 7 S. W. the same line, see McPherson v. Mc- 293, 4 Am. St. 405; Whitehouse v. Pherson, 21 S. Car. 261; Hinchman Bolster, 95 Maine 458, 50 Atl. 240; v. Parlin & Orendorff Co., 81 Fed. Stockwell V. Byrne, 22 Ind. 6; Rapp 157, 26 C. C. A. 323; Pierce v. Reh- V. Rush, 96- 111. App. 356. fuss, 35 Mich. S3. ^ McGhee v. Wells, 57 S. Car. 280, " Jackson v. Citizens' Bank &c. Co., 35 S. E. 529, Id Am. St. 567. 53 Fla. 265, 44 So. 516, 631 FRAUDULENT CONVEYANCES. § 561 inferred from strong presumptive circumstances ; and, while it is true that the painty alleging fraud must prove it, yet in civil actions, like this, the party alleging fraud is not bound to prove it beyond a reasonable doubt. It is sufficient if the fact of fraud is established in the minds of the jury by the greater weight of evidence.^' " Morse v. Ryland, 58 Kans. 250, 48 Pac. 957. CHAPTER LVII. GAS. Section Section 562. Care in the conduct of the busi- 563. Evidence of negligence, ness. § 562, Care in the conduct of the business. — ( 1 ) The court instructs the jury that natural gas is a dangerous, explosive, in- flammable, and deadly substance, and the person or corporation who furnishes it, for a valuable consideration, to heat the stoves, service pipes, heaters, burners, or apparatus of another for the purpose of fuel for domestic heating, must use such care, skill, attention, and diligence, so that no greater amount of pressure thereon shall be furnished than is proper to be furnished, in order to prevent injury to the person and property of others ; and in such case care, skill, attention and diligence must be used in pro- portion to the danger of such substance and business, and, -unless such corporation uses such care, skill, attention, and diligence, it is guilty of actionable negligence.^ (2) The court instructs the jury that a corporation or person furnishing natural gas to the stoves, heaters, burners, pipes, pipe lines, machinery, or apparatus of another, to be used for the pur- pose of domestic heating, for fuel in a dvs^elling house, storeroom, office, or shop, is bound to exercise such care, skill, and diligence in all its operations as is called for by the delicacy, difficulty, and dangerousness of the nature of its business, in order that injury may not be done to others ; that is to say, if the danger, delicacy, or difficulty is extraordinarily great, extraordinary skill and dili- gence is required.^ (3) The court instructs the jury that, by the lavir governing ' Citizens' Gas &c. Co. v. Whipple, ' Citizens' Gas &c. Co. v. Whipple, 32 Ind. App. 203, 69 N. E. 557. 32 Ind. App. 203, 69 N. E. 557. 632 633 GAS. § 563 this case, it was the duty of the defendant, as it is of all cor- porate companies which are invested for their own private advan- tage with the great and important privilege, of supplying a com- munity with natural gas for private habitation heating, to exercise such care, diligence, and skill in the conduct of its business as is proportionated to the danger and risk to the property of others.' § 563. Evidence of negligence. — The court instructs the jury that the mere fact that a pipe broke and the gas escaped is not of itself sufficient to establish the liability of the company. It is evidence for you to consider upon the question of neglect; but there is other evidence bearing upon this question of neg- lect, and so it becomes a matter for you to determine, in view of all the evidence bearing upon the question, the burden being upon the plaintiffs to satisfy you, as a result of all the evidence, that there was in fact a neglect by the defendant through which, and by means of which, this gas escaped. Now, the law requires of the defendant that it shall use reasonable and proper care, un- der all the circumstances, in selecting its pipe, in laying its pipe, in taking care of it afterward — looking after it — and this ques- tion of reasonable and proper care has reference, of course, to the kind of instrumentality that it was dealing with and to the possible or probable consequences of neglect on its part. But the principle by which its conduct is to be regulated is one of reasonable and proper care under the circumstances ; and that in this case, as in most of these cases, is a question for your judg- ment.* ' Citizens' Gas &c. Co. v. Whipple, * Carmody v. Boston Gaslight Co., 32 Ind. App. 203, 69 N. E. 557. 162 Mass. 539, 39 N. E. 184. CHAPTER LVIII. GIFTS. Section Section 564. Essentials of gifts inter vivos. 566. Mental condition of donor. 565. Gifts where confidential relation 567. Burden of proof of validity of exists. gift. §564. Essentials o£ gifts inter vivos. — (1) The court in- structs the jury that in order for you to find that C. made a valid gift of the certificate in question you must find, first, that C. was at the time of the alleged gift of sound mind — that is, that he knew and understood the effect of his act and intended that effect; second, that he actually delivered the certificate in ques- tion to H. ; third, that by such act he intended to pass title to said certificate in question to H. to take effect immediately; and, fourth, that H. actually accepted said certificate as a gift.^ (2) The court instructs the jury that before the plaintiff can recover in this case she must show by a fair preponderance of the evidence a specific intent of C. to part with all right, title and interest in and all dominion and control over the certificate and to confer on plaintiff and vest her with the absolute right, title and interest in said certificate and the money which it repre- sented, and delivery by him to her of the certificate for the pur- pose of safe keeping or any other purpose either express or im- plied, other than a specific intent to give her would not constitute in law a gift.^ § 565. Gifts where confidential relation exists. — The court instructs the jury that when a fiduciary or confidential relation ' This instruction embodied "a cor- complaint she could prove that it was rect declaration of law as to the es- either a gift inter vivos or causa sential elements of a gift inter vivos.'' mortis." Lowe v. Hart, 93 Ark. 548, In this' case the defendant bank 125 S. W. 1030. "claimed the money on deposit as a ''Lowe v. Hart, 93 Ark. 548, 125 'gift' and under the allegations of her S. W. 1030. 634 635 GIFTS. § 566 is established between a donor and a donee, a case arises for watchfulness on the, part of those who have to pass on the validity of the gift to see that this confidence has not been abused by the exercise of undue influence. The mere existence of such a confidential relation does not, as a matter of law, operate to bar the right of a beneficiary to receive such a bounty. If the donor was, at the time, of sound mind, and clearly understood the transaction, and exercised a free will in the act, under no restraint or undue influence, such gift will be supported. But the law views transactions of this kind between such parties with some jealousy, and if, at the time of the gift, the donor's mind was enfeebled by age and disease, even though not to the extent of producing mental unsoundness, and the donor acted without in- dependent and disinterested advice, and in the presence of the donee, and such gift was of a large portion of all the donor's estate and operated substantially to deprive those having a nat- ural claim to the donor's bounty of all benefit from the donor's estate, these circumstances, if proved and unexplained, would authorize a jury to find the gift void, through undue in- fluence, without proof of specific acts and conduct of the donee. But where the donee is himself a witness, and other evidence is introduced, as in the present case, the whole matter is for the determination of the jury, and the general burden is on the plaintiff, taking all the evidence, natural presumptions, and in- ferences together, to establish the proposition of undue influence.* § 566. Mental condition of donor. — (1) The court instructs the jury that neither sickness nor infirmity will disqualify one for making a gift if sufficient mind remains; and if the jury believe from the evidence that C. delivered the certificate of deposit in controversy to H., with the intent of making it a gift to her, and that he made any declarations with reference thereto, the jury may consider these things in connection with the other evidence in determining the mental capacity of C, and if they believe from all the evidence before them that he knew what he was doing at the time and intended by such delivery and declaration to make 'Woodbury v. Woodbury, 141 Mass. 329, S N. E. 275, SS Am. Rep. 479. § 567 INSTRUCTIONS FORMS. 636 a gift of the certificate to H., they will find a verdict sustaining the gift.* (2) The court instructs the jury that, in determining whether, at the time of the alleged delivery of the certificate to H., C. in- tended to make a gift of it to her, you may take into consideration all the facts and circumstances surrounding the transaction ; the acts and declarations of the deceased at the time and before and after the alleged gift; the relationship existing between C. and H. or her family, whether friendly or otherwise, and his mental condition.^ § 567. Burden of proof of validity of gift. — The court in- structs the jury that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence a valid gift of the certificates in question by C. to her; so if, from a consideration of the entire case, you find the evidence equally balanced for and against the alleged gift, it will be your duty to find for the inter- pleader and against the plaintiff.* *Lowe V. Hart, 93 Ark. 548, 12S S. "Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030. W. 1030. '^ Lowe V. Hart, 93 Ark. 548, 125 S. W. 1030. CHAPTER LIX. HIGHWAYS. Section Section 568. Dedication for highway pur- 573. Contributory negligence of in- poses. jured traveler. 569. Duty to place barriers at danger- 574. Contributory negligence of trav- ous places. eler — Intoxication. 570. Law of the road. 575. Care to be exercised by travelers 571. Care in the use of highway by under disability. traveler. 576. Use of highway by bicyclist. 572. Excessive speed. §568. Dedication for highway purposes. — (1) The court instructs the jury that if they believe, from the evidence, that the plaintiff, about the year , fenced out a strip of his land, intending that it should be taken by the public for a highway, of which strip the place in question is a part; that the public ac- cepted said strip of land by working and improving the same under the direction of the public highway officers, and by using the same as a public highway, and that plaintiff, well knowing such improvement and use, acquiesced therein for about eighteen years without objection, then the place in question has been dedi- cated to the public and the jury must find the defendant not guilty. If, however, there was a laid out road sixty feet wide, with the section line as the center line of the road, and if the road- was fenced by the plaintiff with intent to fence on the north line of said laid out road, and if by mistake the fence was placed between twenty and thirty feet too far north, then the dedica- tion would be of the north thirty feet in width of the road along the section line of plaintiff's land, if he only intended to dedicate the north half of the road as laid out on the south thirty feet only of his land north of the section line.'^ ^The portion of the above instruc-- sixty feet wide, with the section line tion beginning with the words, "If, as the center of the road," was added however, there was a laid out road by the trial court. This qualification ^i7 § 569 INSTRUCTIONS FORMS. 638 (2) The court instructs the jury that if they believe, from the evidence, that a public road was used by the public over the place in question for the period of twenty years next before the plain- tiff put his fence therein, without interruption, other than such temporary deviation as occurred by reason of bad roads, and that the plaintiff, and they who owned the land before him, ac- quiesced therein, then the law conclusively presumes that the owner of the land in question granted the same to the public for a highway and in such case the jury must find the defendant not guilty. If, however, there was a surveyed and laid out road sixty feet wide with the section line for the center of it, and if the travel was intended as a use of said laid out road and diverged from it merely because it was not fenced and worked, and merely because of the ignorance of the travelers as to its limits or for the convenience of said travelers to avoid bad places, then the road, by prescription or presumed grant of it as used for twenty years, would be the said laid out road, and not one or more roads on such place or places as a track or tracks might have been made outside of the surveyed limits of said laid out road. And it is the duty of said public authorities, when the limits of the high- way are clearly defined, to see to it that the road labor is not done outside the limits of the road and that fences are kept out of it.^ §569. Duty to place barriers at dangerous places. — (1) The court instructs the jury that if you find by a preponderance of the evidence in this case that this roadway down this hill at and near the place where the accident occurred was so narrow •that it required barriers to make it reasonably safe, then I charge you that it became the duty of the township to erect such bar- riers on the east side of the highway at the place in question, and, failing to do this, it would be negligence on the part of the township; and, if as a result of this negligence after the town- ship had actual or constructive notice of the fact that this place was in an unsafe condition for public travel, L.'s team and sleigh and contents went over the bank and L. sustained loss there- from, and there was no fault or iiegligence on his part, contribur of the instruction was approved by ^ Manrose v. Parker, 90 111. 581. the reviewing court. Manrose v. Parker, 90 111. 581. 639 HIGHWAYS. § 571 tory to the injury, then the defendant township would be Hable for damage in this case.** (2) The court instructs the jury that you will first consider and determine the question whether this portion of the highway where the accident occurred was in a condition reasonably safe and fit for travel, and in this case that question will depend upon your solution of another question, viz., whether or not suitable railings or barriers along the sides and top of the embankment in question were necessary to render the highway reasonably safe and fit for travel.* § 570. Law of the road. — The court instructs the jury that the law requires that persons who meet on the highway shall keep to the right. This, however, does, not give a person a right to keep to the right of the road regardless of consequences. , It simply means that his duty is to keep to the right, unless he has some warning to indicate to him that he must take some other course to protect himself or to avoid injury to others.^ § 571. Care in the use of highway by traveler. — (1) The court instructs the jury that the only acts of negligence on the part of the defendants on which there has been any evidence whatsoever is: First, on the question of whether or not the plaintiff in this case, at or about the time his horse became frightened, signaled to the defendant to stop his machine, and if the defendant failed to stop the machine within a reasonable time after receiving such signal, if you believe from the testi- mony that said signal was so given ; and, second, whether or not the defendant, on first observing that the horse behind which plaintiff was riding was frightened, failed to act as a reasonably prudent man should have acted under the circumstances (that is, failed to reduce the speed of the car and failed to use such care as a reasonable and prudent man should have used under all the circumstances).'' (2) The court instructs the jury that if they should find that ' Lubbers v. Manlius Tp., 172 Mich. " Cook Brewing Co. v. Ball, 22 Ind. 387, 137 N. W. 804. App. 656, 52 N. E. 1002. *Malloy V. Walker Tp., 17 Mich. °Yttregard v. Young (Wash.), 137 448, 43 N. W. 1012, 6 L. R. A. 695. Pac. 1043. § 572 INSTRUCTIONS FORMS. 64O the plaintiff was driving on the traveled track, and on the ap- proach of the defendant, and as soon as he savi^ him, the plaintiff attempted to turn to the right, and was in fact in the act of turn- ing to the right, and the defendant did not turn to the right, and defendant was guilty of negligence, thereby causing the collision, then the plaintiff would be entitled to recover, as it is the duty of the defendant to seasonably turn to the right as well as for the plaintiff/ (3) The court instructs the jury that an owner of an automo- bile has the right to use the highway of this state, provided in using it he uses reasonable care and caution for the safety of others, and does not violate the law of the state.* § 572. Excessive speed. — (1) The court instructs the jury that even if they should believe from the evidence that the defend- ant was not, at the time of the injury complained of, driving at an unusual rate of speed; still, if they further believe from the evi- dence that the defendants did commit the injury upon the plain- tiff, as charged in the declaration, while she was using due and proper care, and the defendants might, by using ordinary and proper care at the time, have avoided committing such injury, and that in consequence of a want of such reasonable and ordinary care on the part of the defendants the plaintiff received the in- juries complained of, then the jury should find the defendants guilty and assess the plaintiff's damages at such sum as they may think, from the testimony, will compensate her for the injuries so sustained by her, not to exceed the amount claimed in the declaration.^ (2) The court instructs the jury that if they believe from the evidence that on the occasion plaintiff was injured the defend- ants were operating an automobile along the public highway at a speed greater than was reasonable and proper, having regard to the traffic and use of the highway, and if they further believe from the evidence that by reason of that fact, if the jury find it to be a fact, the plaintiff's horse became frightened, and over- ' Buxton V. Ainsworth, 153 Mich. N. E. 1035, 1 L. R. A. (N. S.) 215, 315, 116 N. W. 1094. 108 Am. St. 196. 'Christy v. Elliott, 216 111. 31, 74 ° Schmidt v. Sinnott, 103 111. 160. 641 HIGHWAYS. § 573 turned his wagon, whereby the plaintiff was injured, and his property damaged, the jury should find for the plaintiff, and fix the damages according to the third instruction." (3) The court instructs the jury that in an action brought to recover damages, either to the person or property, caused by running an automobile propelled by mechanical power in the pub- lic highway at a greater rate of speed than fifteen miles per hour, the plaintiff is deemed to have made out a prima facie case by showing the fact that he or she has been injured, and that the person running such automobile, either by himself or his agent, was at the time of the injury running the same at a speed in ex- cess of fifteen miles per hour.^^ (4) The court instructs the jury that unless they believe from the evidence that the defendants were running the automobile at a greater rate of speed than was reasonable and proper, having regard to the traffic and use of the highway, and that by reason of that fact the plaintiff's horse became frightened, and over- turned his wagon, the jury should find for the defendants.^^ §573. Contributory negligence of injured traveler. — (1) The court instructs the jury that if the deceased saw the automo- bile coming when the automobile was one hundred and fifty feet away from him, as was testified to by one of the plaintiff's wit- nesses, and shouted to it to keep out of the way, it was his duty to remove himself to a safe position, where he would not be struck by the automobile if he could have done so by the exer- cise of reasonable care after the danger was or should have been apparent to him. The deceased was bound to exercise reasonable care to protect himself from injury, and, if he knew the auto- mobile was coming, it was his duty to exercise reasonable care to get out of the way of it; that is, the moment that he saw, or as a reasonable man ought to have apprehended, danger from it." (2) The court instructs the jury that it appears from the evi- "East Tennessee Tel. Co. v. Cook, "Case v. Clark, 83 Conn. 183, 76 155 Ky. 649, 160 S. W. 166. Atl. 518. Care at street railway " Ward V. Meredith, 220 111. 66, crossing by driver of automobile, see n N. E. 118. Texas Trac. Co. v. Wiley (Tex. Civ. "East Tennessee Tel. Co. v. Cook, App.), 164 S. W. 1028. 155 Ky. 649, 160 S. W. 166. 41 — Branson's Inst. § 573 INSTRUCTIONS FORMS. 642 dence in this case on the part of the plaintiff that his son had fre- quently traveled over the highway in question, and was familiar with the general condition of the highway on this hill. Now, I charge you that that fact does not necessarily forbid or preclude a recovery on the part of the plaintiff ; but it did impose upon hi^ son the obligation to use what knowledge he had and to act upon that knowledge in passing over this highway, and it placed upon him the duty to exercise that degree of care and prudence in view of the condition of the highway that an ordinarily careful and prudent man would have exercised in view of all the circum- stances which surrounded the plaintiff's son at the time of the alleged accident.^* (3) The court instructs the jury that the sixth question is, "Was the plaintiff guilty of any want of ordinary care which contributed to produce the injury received?" On that question the defendant has the burden of proof. In your answer to that question you must find, in order to answer it by "Yes", that the plaintiff was so guilty by a fair preponderance of the evidence. The question involves whether the plaintiff, or anybody acting for her, was guilty of any act of negligence or any failure to act which contributed to the injury received. The defendant claims in this case that the buggy was overloaded ; that there were seven persons and a keg of beer in it, etc., and that it was so overloaded that it was dangerous per se, or that any injury was likely to re- sult with the buggy so overloaded. It is also claimed by the de- fendant that the driver, the son of the plaintiff, who was driving, the defendant claims, was negligent in driving. You have heard the evidence on that subject, and it will be for you to determine whether, under all the circumstances of the case which have de- veloped, the driver was negligent and contributed to the injury which the plaintiff received. If he was not guilty of any negli- gence and did not have anything to do with the injury she re- ceived, then it was not contributory negligence. You must find him guilty of contributory negligence which contributed to the injury she received, before you can answer that question by "Yes"." "Lubbers v. Manlius Tp., 172 ""VoIImer v. Fairbanks, 146 Wis. Mich. 387, 137 N. W. 804. 630, 132 N. W. 542. 643 HIGHWAYS. § 575 (4) The court instructs the jury that if the plaintiff, at the time he was injured, failed, even in a slight degree, to exercise ordinary care in driving over the rock which has been testified to in this case, he can not recover. The meaning of this instruction is, in fact, that he must use ordinary care, and must not, to any extent, have failed to come up to what is ordinary care. Since it is asked, I will say to you that what is known as slight negli- gence in the law will not defeat a recovery. Slight negligence means a want of that care which very prudent men exercise. That is what the law terms slight negligence. Every one trav- eling over a highway is required to use ordinary care, and must come up to the standard of ordinary care, and that is the care that the great mass of people use in traveling over the highways of the country. That much care must, in all cases, be used.^" § 574. Contributory negligence of traveler — Intoxication. — The court instructs the jury that, since a person, when in- toxicated, is less likely to use ordinary care in a given instance than when he is sober, it is always proper to inquire into his con- dition in this respect. If he has been called upon to use such care, and if it is found that at the time he was intoxicated, this circum- stance may be considered upon the question whether he did in fact use ordinary care at the time in question.^' § 575. Care to be exercised by travelers under disability. — The court instructs the jury that a blind person has the same rights on the public streets as any other person, and it is not or- dinarily negligence for a blind person to go upon the streets un- attended, if such person use ordinary care as defined in these in- structions ; but, if you believe from the evidence that the plaintiff was blind, that fact would not excuse him from his obligation to use due care. He was nevertheless bound to exercise that degree of care that an ordinarily prudent person would have exercised un- der the circumstances as shown by the evidence, and the fact that he was blind not only did not excuse him from the exercise of or- dinary care, but required of him the greater use of his other " Doan V. Willow Springs, 101 Wis. " Guertin v. Hudson, 71 N. H. SOS, 112, 76 N. W. 1104. 53 Atl. 736. § 57^ INSTRUCTIONS FORMS. 644 senses to discover, if possible, whether any vehicle was approach- ing the street over which he was crossing, and, if he failed to exercise such care, he can not recover ; but if you find that he did exercise such care, and he was injured on account of the defend- ant's negligence, then you should find for the plaintiff.^' § 576. Use of highway by bicyclist. — The court instructs the jury that in the matter of carrying a light or the failure to carry a light, the matter of ringing a bell or not ringing a bell, you are instructed that the failure to carry a light or failure to ring a bell is not conclusive proof that plaintiff [bicyclist] was guilty of contributory negligence ; but these facts, like the other evidence in the case, should be taken into consideration by you in reaching your conclusion regarding the circumstances and sur- roundings of the accident.^" "McLaughlin v. Griffin, ISS Iowa "Cook v. Fogarty, 103 Iowa SOO, 302, 135 N. W. 1107. 72 N. W. 677. CHAPTER LX. HUSBAND AND WIFE. Section Section 577. Common-law marriage. 580. Liability of wife for debts of 578. Separate maintenance. husband. 579. Wife's liability for debts for 581. Wife as surety for husband. benefit of her separate estate. 582. Recovery for injuries to wife. § 577. Common-law marriage. — The court instructs the jury that a common-law marriage is legal and valid under the law of T., and neither the issuance of license or ministerial or official marriage ceremony is necessary to constitute a lawful and binding common-law marriage. All that is necessary to consti- tute such a marriage is that if the parties mutually agree and con- sent together to become husband and wife, and thereafter carry out that agreement and live and cohabit together as husband and wife, the marriage would be valid under our law. If you find and believe from the evidence that the plaintiff and the de- ceased, G. M. D. G., on or about the day of , , mutually consented and agreed together with each other to be- come husband and wife with the intention at that time of living and cohabiting with each other as husband and wife, and that in pursuance of such agreement, if any, they did professedly live and cohabit together as husband and wife, you will find for the plaintiff that she was the common-law wife of the deceased, G. M. D. G. If, however, on the other hand, you fail to find that plaintiff and deceased, G. M. D. G., mutually consented and agreed together with each other to become husband and wife on or about , , , or if you find that plaintiff and de- ceased, G., did professedly live and cohabit with each other as husband and wife in pursuance of such agreement, if any, you will find for the defendant, E. J. R.^ 'Grigsby v. Reib (Tex. Civ. App.), 139 S. W. 1027. 645 § 578 INSTRUCTIONS FORMS. 646 § 578. Separate maintenance. — The court instructs the jury that, if a husband and wife part by consent and he secures to her a separate maintenance suitable to his condition and cir- cumstances in Hfe and pays it according to agreement, he is not answerable even for necessaries; and the general reputation of the separation will, in that case, be sufficient to protect the hus- band from liability to tradesmen selling goods to the wife.* § 579. Wife's liability for debts for benefit of her separate estate. — (1) The court instructs the jury that if you find from the evidence in this case that V. loaned the money to B. on the representations made by her husband, in her presence, that she desired the money for the purpose of making a payment on a mortgage against her own property, and that V. relied on those representations — and I add these words, in good faith, supposing them to be true — then it Is immaterial as to what became after- wards of the money. Whether it was applied for the benefit of her separate estate or not, you must find for the plaintiff.^ (2) The court instructs the jury that if you should find from all the evidence that she either made such statements as he claims at , or her husband made them in her presence, and she un- derstood them * * * she is estopped from setting up a de- fense on the ground that the money was used for something else.* (3) The court instructs the jury that if you are satisfied by the preponderance of the evidence that that note was executed for the benefit of her (A.'s) separate estate she is liable. If it was for the benefit of somebody else, she is not liable.^ (4) The court instructs the jury that as to her separate prop- erty, she has all the rights to contract that a grown man of twenty-one years of age would have." 'Le Boutillier v. Fiske, 47 Hun (N. 374, SO S. E. 124; Englehart v. Rich- Y.) 323. Necessaries furnished wife ter, 136 Ala. 562, 33 So. 939. after she has left husband, see Corry *Vosburg v. Brown, 119 Mich. 697, V. Lackey, 105 Mich. 363, 63 N. W. 78 N. W. 886. 418. "Dial V. Agnew, 28 S. Car. 454, 6 "Vosburg V. Brown, 119 Mich. 697, S. E. 295. 78 N. W. 886. See also Atlanta Sub- ° Dial v. Agnew, 28 S. Car. 454, 6 urban Land Corp. v. Austin, 122 Ga. S. E. 295. ^47 HUSBAND AND WIFE. § 582 (5) The court instructs the jury that in the case before you you are to say whether or not, in the purchase of this engine, or whether in the execution of this note for the purchase-money, or part of it, she undertook to create a separate estate. If the trans- action was a roundabout way of assuming liability upon the part of A. for the benefit of her husband, she is not bound.'' § 580. Liability of wife for debts of husband. — The court instructs the jury that by the laws of the territory a married woman is not responsible for the debts of her husband, and, be- fore they can find the issues against the defendant N. H., they must find that she was the sole contractor, and that the goods were sold to her, and not her husband.® § 581. Wife as surety for husband. — ^The court instructs the jury that a wife can not become surety for the husband's debt, either directly or indirectly, and unless you believe that D. C. C. and F. M. C. are partners your verdict must be for the defendant F. M. C.^ §582. Recovery for injuries to wife. — (1) The court in- structs the jury that in addition to such damages, if you find any, you may consider in connection with the question of the loss of services and her doctors' bills, and I will say to you if you find by a preponderance of the evidence in the case that the plaintiff has paid, or has agreed to pay, the charges for medical treatment for the injuries which she sustained by reason of the negligence of the defendant, out of her own personal estate, and that such expenses were charged to her individually, and she was given sole credit for the same, she would be entitled to recover such sum so expended or incurred for such medical treatment. * * * gut before you can allow her anything for her medical treatment and for her loss of services, you must find that the agreement existed between her and her husband that she should have her earnings ; and on the question of her doctors' bills you must find first that ' Dial V. Agnew, 28 S. Car. 454, 6 ° Compton v. Smith, 120 Ala. 233, S. E. 295. 25 So. 300. 'Holmes v. Tyler, 8 N. Mex. 613, 45 Pac. 1129. § 5^2 INSTRUCTIONS FORMS. 648 the credit was given to her solely and individually without any expectation of coupling somebody else with her in paying the doctors' bills." (2) The court instructs the jury that plaintiff can not re- cover any sum whatever on account of her inability to perform her household duties, or for any loss of time from her household duties which she may have heretofore sustained or may here- after sustain." (3) The court instructs the jury that, if they find for plain- tiff, they will assess his damages at such sura as they believe, from the evidence, will be a fair compensation to plaintiff for any expense he has incurred as doctor's bills on account of the injuries to his wife, not exceeding $ , and also for such ex- pense, if any, as he incurred for medicines and appliances, made necessary by said injuries, not exceeding $ , and also for any expense which he incurred for hired nurses, if any, not ex- ceeding in all $ , and also for such loss of service of his said wife, if any, as were occasioned by said injuries, and for future loss of service, if any, which the jury believe, from the evidence, will in all reasonable probability be occasioned to plaintiff on ac- count of the injuries to his said wife, not exceeding $ .^^ "Boyle V. Saginaw, 124 Mich. 348, "Newell v. St. Louis Trans. Co., 82 N. W. 1057. See also Johnson v. 108 Mo. App. 530, 84 S. W. 195. Costigan, 122 Mich. 596, 81 N. W. "Tandy v. St. Louis Trans. Co., 559; Kocher v. Palmetier, 112 Iowa 178 Mo. 240, 11 S. W. 994. 84, 83 N. W. 816; Englehart v. Rich- ter, 136 Ala. 562, Zi So. 939. CHAPTER LXI. INFANTS. Section Section 583. Ratification of contracts. 584. Evidence to show emancipation. §583. Ratification of contracts. — (1) The court instructs the jury that if you beUeve from the evidence that S. E. H., after she became twenty-one years of age, and before marriage, with knowledge that she, on account of infancy, was not liable to plaintiff for any purchases she may have made of him, ex- pressly promised that she would pay for any portion of the articles mentioned in the bill of particulars, such promise would be a ratification of the previous contract to the amount she prom- ised to pay. If she promised to pay all, it would render her liable for all. If she promised to pay a part, or a certain sum, it would render her liable for such part, or for such certain sum ; and if she, after such promise, paid any money to plaintiff, it would go as a credit on the amount for which she made herself liable on the new promise.^ (2) The court instructs the jury that there might be some question about the rescinding of the contract within a reasonable time, but if the testimony should satisfy the jury that G. W. was but fifteen or sixteen years old, or thereabouts in 1859, when it is claimed he made the deed to H. N., then it would take until 1865 for him to attain his majority, and he would have to dis- affirm the contract within a reasonable time after attaining his majority, and within a year or so would be a reasonable time.^ § 584. Evidence to show emancipation. — The court in- structs the jury that the status of a person in his minority, as to whether emancipated by his parents or not, may be shown by an express agreement or circumstantial evidence.^ ■ Ogborn v. Hoffman, 52 Ind. 439. = Grotjan v. Rice, 124 Wis. 253, 102 = Hegler v. Faulkner, 153 U. S. 109, N. W. SSI. 14 Sup. Ct. 779, 38 L. ed. 653. 649 CHAPTER LXII. INNS AND INNKEEPERS. Section Section S8S. Loss of guest's effects. 586. Removal of disagreeable guests. § 585. Loss of guest's effects. — (1) The court instructs the jury that if they find from the evidence in the cause, that the plaintiff was a guest of the defendant, as alleged in the declara- tions in this cause ; that the trunk of the plaintiff was brought by him into the hotel of the defendant, while the plaintiff was a guest in said hotel ; that the said trunk contained the bank-notes testified to by the plaintiff, and that said trunk and its contents were lost while so in said hotel, the plaintiff can not recover for said bank-notes in this action, unless they shall also find that the said bank-notes were designed by the plaintiff for his use while on his journey or while a guest in said hotel, or unless they shall find that they were lost by the fraud or negligence of the defend- ant.^ (2) The court instructs the jury that if they find the facts stated in the above prayer, and also find that the plaintiff had on his person at the time of his arrival at the hotel of the defend- ant, four or five hundred dollars in money of this country, and that the money in the trunk was in Canada money, they may find that the money of this country was intended by him for use on his journey and was sufficient for that purpose, and if they do so find, then the plaintiff can not recover for the money in the trunk, unless they find it was lost by the fraud or negligence of the defendant.^ (3): The court instructs the jury that the plaintiff left and came to C. and brought the caddy or box of tea in contro- versy with him, and that said caddy or box had not been opened 'Treiber v. Burrows, 27 Md. 130. "Treiber v. Burrows, 27 Md. 130. 650 651 INNS AND INNKEEPERS. § 586 when he arrived at C, and that he intended renting a house and going to housekeeping in C. they may find that the tea was not intended for use while on his journey or while he was a guest in the hotel of the defendant (if they find he was such guest), and if they do so find, then the plaintiff can not recover for said tea in this action, unless they also find that it was lost by the fraud or negligence of the defendant.^ § 586. Removal of disagreeable guests. — The court in- structs the jury that if the annoying acts were wilful, the de- fendants could remove decedent in the manner stated in point. If, however, they were the result of sickness, although they might, under certain circumstances, remove him, such removal must be in a manner suited to his condition.* 'Treiber v. Burrows, 27 Md. 130. 480, 28 Atl. 291, 23 L. R. A. 574, 39 *McHugh V. Schlosser, 159 Pa. Am. St. 699. CHAPTER LXIII. INSURANCE. Section 587. Fire insurance. 588. Fire insurance — Property cov- ered by policy. 589. Fire insurance — Additional in- surance. 590. Fire insurance — Renewals. 591. Fire insurance — Ownership of premises. 592. Fire insurance — Alteration of premises. 593. Fire insurance — Prohibited arti- cles in insured building. 594. Fire insurance — Explosion. 595. Fire insurance — Destruction of property by incendiary. 596. Fire insurance — Vacancy of premises. 597. Fire insurance — Inventories. 598. Fire insurance — Extent of loss. 599. Fire insurance — Proofs of loss. 600. Fire insurance — Transfer of pol- icy. Section 601. Life insurance — Misrepresenta- tions as to health of assured in application. 602. Life insurance — Powers of agent as to application. 603. Life insurance — Prohibited occu- pations. 604. Life insurance — Excessive use of intoxicants by assured. 605. Life insurance — Suicide of as- sured. 606. Accident insurance. 607. Accident insurance — Injury through external, violent and accidental means. 608. Accident insurance — Visible marks. 609. Accident insurance — Violation of condition of policy. 610. Accident insurance — Extent of loss. 611. Fidelity and casualty insurance. 612. Marine insurance. §587. Fire insurance. — (1) The court instructs the jury that if the work done by the mechanics, as disclosed by the evi- dence, increased the hazard while such work was being done, then the plaintiff is not entitled to recover.^ (2) The court instructs the jury that if they believe from the evidence that on the day of , 19 — , the commodities of the plaintiff mentioned in the policy of insurance, offered in ' Imperial Fire Ins. Co. v. Coos, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. ed. 231. 652 653 INSURANCE. § 588 evidence, were destroyed or injured or lost in the manner testi- fied to by the plaintiff's witnesses ; and if they further find from the evidence that such loss or damage was the result of fire not having its origin or commencement by or with an explosion of any sort, but by the accidental combustion of any nonexplosive substance in the cellar of plaintiff's premises, described in said policy, and that in consequence of such combustion the front building erected on said premises was prostrated, and the loss or damage to the property insured was the immediate result thereof — then the loss was occasioned by fire within the meaning of the policy, and the plaintiff is entitled to recover in this action.* (3) The court instructs the jury that the burden of proof is upon the plaintiff in this case not only to show any damage or loss for what he sues that he may have sustained by the alleged fire, but to show also that such damage or loss was covered by the policies sued upon.* § 588. Fire insurance — Property covered by policy. — The court instructs the jury that where it is denied by the defendant insurance company that the property shown by the evidence to have been destroyed by fire was covered by the policy, and the jury find from the evidence that there was no written application for the policy or policies under which the defendant insurance company makes such denial, if you further find from the evidence that the agent of the insurance company has given a description of the property from his own knowledge obtained by personal exam- ination of the property for the purpose of effecting the insurance thereon, which description he, the said agent, inserted in the policy, then said defendant insurance company can not take ad- vantage of any inaccuracy in the language of the description of the said property so inserted in the policy to avoid payment for the loss of property as aforesaid, unless there is evidence of an at- tempt on the part of the plaintiff to mislead said defendant or its agents in this respect, or the conduct of the plaintiff was such as to mislead said defendant or agent. And knowledge of the in- surance company or agent of inaccuracy or incompleteness in the 'Mitchell V. Potomac Ins. Co., 183 'Greenwich Ins. Co. v. State, 74 U. S. 42, 22 Sup. Ct. 22, 46 L. ed, 74. Ark. 72, 84 S. W. 1025. § 589 INSTRUCTIONS FORMS. 654 description of the property at the time when the insurance is effected, if such is shown by the testimony, and you so find, will estop the defendant from setting up any such inaccuracy or in- completeness of description in defense in this case.* §589. Fire insurance — Additional insurance. — (1) The court instructs the jury that a waiver may be said to be a volun- tary relinquishment of a known right. It need not be by word of mouth, and it need not be in writing. It may be consent ex- pressly or impliedly given. It may consist in the doing of some act which is inconsistent with an intention to insist on a strict performance, or in a course of conduct inconsistent with and in disregard of the terms of the contract. The plaintiff claims that C. waived such breach if with knowledge of the additional in- surance he expressed to the plaintiff his consent thereto; and if with such knowledge he did express his consent thereto to the plaintiff, then as a matter of law he did thereby consent to the additional insurance and waived the breach of the condition in- volved in procuring it. He waived it, also, if with such knowledge he elected to and did treat and recognize the policy of insurance as a subsisting and valid contract. ° (2) The court instructs the jury that although you may be- lieve from the evidence that after receiving the policy from the defendant the plaintiff did procure other insurance on the prop- erty in question (without having the consent of the other com- pany written on the policy), still, if you further believe from the evidence that one E. W. was at the time local agent of the company, and had authority to write, issue, sign, and deliver policies of insurance, and receive premiums therefor, and fur- ther find that while the said E. W. was so acting as agent, the plaintiff notified him of his intention to take out other additional insurance on the property in question, and at the time or after-' wards, told him that he was about to do so, and that neither said agent nor any one else on behalf of the defendant made any ob- jection to the issuance of such other policy, and took no steps to cancel the policy sued on, nor notified the plaintiff that such addi- * Greenwich Ins. Co. v. State, 74 ' Coppoletti v. Citizens' Ins. Co. Ark. 72, 84 S. W. 1025. (Uirm.), 143 N. W. 787. 655 INSURANCE. § 589 tional insurance, without being indorsed thereon, would render the policy sued on void, then the defendant may be deemed to have consented to such additional insurance and to have waived the condition in the policy regarding such additional insurance, and the plaintiff's right to recover would not be affected thereby." (3) The court instructs the jury that notice to the agent is notice to the principal, and if you believe from the evidence that E. W. was the agent of the defendant company, with authority to write and deliver policies for the defendant company, and that he was notified by the plaintiff of his intention to take out addi- tional insurance placed on plaintiff's property, and that he did not object to the same or suggest any breach of the condition of the policy issued by defendant, in consequence thereof, then the jury would be authorized to find from these facts that the defend- ant waived the provision of the policy relied on as defense in this case.^ (4) The court instructs the jury that the third issue sub- mitted to the jury is. Did the plaintiffs have, at the time of the issuing of the policy of insurance, or did they afterwards have,' any other contract of insurance, whether valid or not, on the property covered by the policy of insurance ? The burden of this issue is upon the defendant to show by the greater weight of the evidence that the plaintiffs did have another contract of insur- ance, whether valid or not, on the property covered by the policy of insurance. The defendant contends that the plaintiffs did have another contract of insurance on the property covered by the pol- icy of insurance. It contends that the plaintiffs had received and accepted from the Assurance Company a policy for ■ — — • dollars on the property covered by the policy of insurance sued on. The plaintiffs contend that they had no other policy on this property. This is for the jury to determine from the evidence in the case. If N. received and accepted a policy of insurance from the Assurance Company — a policy covering the prop- erty covered by the policy sued on — then the jury will answer the third issue "Yes." If the defendant has failed to show the af- 'Polk V. Western Assur. Co., 114 'Polk v. Western Assur. Co., 114 Mo. App. 514, 90 S. W. 397. Mo. App. 514, 90 S. W. i91. § 590 INSTRUCTIONS FORMS. 656 firmative of the third issue by a greater weight of evidence, then the jury will answer the third issue "No."* (5) The court instructs the jury that if the plaintiffs procured the written permission of the agent to get other insurance and the agent neglected to indorse the same on the policy or inform the company, then the plaintiffs can not be affected by such neglect if such agent had authority to give the permission, which is a fact for the jury.® § 590, Fire insurance — Renewals. — The court instructs the jury that if they believe it was the custom of the defendant company, after once securing patrons, to issue renewals of its policies upon their expiration, and without notice to the policy holders, and charge the premiums to said policy holders, and thereafter collect same, and if they further believe that appellee about , 19 — , entered into an agreement with defendant's agent, whereby, at the expiration of the policy he then held, the agent would renew the same by issuing another like policy, they should find for appellee the amount sued for, six hundred dollars, less fourteen dollars and forty cents, the premium due.^" §591. Fire insurance — Ownership of premises. — (1) The court instructs the jury that if they believe from the evidence that the plaintiff, M., was not the sole and unconditional owner of the property covered by the said policy of insurance at the time of its issuance or at the time of the fire, then the said policy is void, and he can not recover anything thereunder, and you will so find, unless defendant or its agent knew at the time of its is- suance of the said policy that M. was no such sole owner.^^ (2) The court instructs the jury that if you find from the proof that E. M. E. had previously purchased and obtained deeds to two-thirds of the property insured ; that subsequently he con- tracted verbally for the purchase of the remaining third; that, pursuant to such verbal agreement, E. paid in cash the sum of $ , with the understanding that the vendors would execute a ' Nelson v. Atlantic Home Ins. Co., " American Cent. Ins. Co. v. Har- 120 N. Car. 302, 27 S. E. 38. din,, 148 Ky. 246, 146 S. W. 418. ° Planters' Mutual Ins. Co. v. "Greenwich Ins. Co. v. State, 74 Lyons, 38 Tex. 253. Ark. 72, 84 S. W. 102S. 657 INSURANCE. § 593 deed, and deposit the same with an attorney, to be by him de- Hvered to E. as soon as the balance of the purchase-money was paid in full; if you further find that said balance was paid, and the deed subsequently delivered as agreed — then, in such case, E. would be the equitable owner of an insurable interest in the property, under the terms of the two policies, and your verdict should be for the plaintiff in both cases." § 592. Fire insurance — Alteration of premises. — The court instructs the jury that no alteration made on the premises where the property insured by the plaintiff was situate would avoid his policy, nor can his recovery be defeated by means of altera- tions unless the effect of the same was such as to increase the risk or hazard of loss by fire to the property insured. If the jury find from the evidence that the defendant insurance company made the policy sued upon, and the property insured was de- stroyed by fire, as stated in the complaint, and plaintiff complied with the agreements and conditions in the policy to be complied with on his part, or that the same were waived by defendants' agents, they will find for the plaintiff." § 593. Fire insurance — Prohibited articles in insured build- ing. — (1) The court instructs the jury that, you hardly need be told; I think, as ordinary business men, that a privilege to keep something does not bring the privileged article within the articles insured by the policy. Suppose that clause read "privilege to keep not more than fifty pounds of gunpowder", on the premises, and the party insured was keeping a dry goods store or a drug store, would it be contended by any sensible man that the gun- powder was an article insured by the policy ? Clearly this privi- lege to keep was inserted to offset the forfeiture of the policy if the provision contained in this policy were violated without this privilege, and that provision is this : If gunpowder, phosphorus, naphtha, benzine, or crude earth or coal oil are kept on the prem- ises, or if camphene, burning fluid, or refined coal or earth oils are kept for sale, stored, or used on the premises in quantities "" Southern Ins. Co. v. Estes, 106 "Greenwich Ins. Co. v. State, 74 Tenn. 472, 62 S. W. 149, 52 L. R. A. Ark. 72, 84 S. W. 102S. 915, 82 Am. St. 892. 42 — Branson's Inst. § 594 INSTRUCTIONS FORMS. 658 exceeding one barrel at any one time, without written consent of tile company, the policy should be void. So that if these five bar- rels of gasoline were kept upon those premises without the writ- ten consent of the company, the policy would have been abso- lutely forfeited and the plaintifif would not have been entitled to recover damages for loss if the whole stock had been destroyed by fire. So it must be believed that the plaintifif, when he took his policy, fully understood what its terms and provisions were. That is the reason that he asked for, received, and paid for this privilege of keeping not more than five barrels of gasoline on the premises. I suppose that, inasmuch as keeping such inflammable material upon the premises would naturally increase the risk of loss, the insurance company would require the payment of a larger premium than it would have required if such inflammable material were not kept on the premises.^* (2) The court instructs the jury that if you find from the evidence that the fire which destroyed the property insured under this policy was caused by the failure of the insured to comply with the clause of the policy restricting the use of kerosene oil kept on the premises, you will find for defendant.^' (3) The court instructs the jury that the words "kept or al- lowed" as used in policies of insurance does not refer to the tem- porary presence of gasoline on the premises ; that the prohibition means something more than a mere casual taking of gasoline on the premises and removing it soon after, and that the burden of proof is upon the defendants to show by a fair preponderance of the evidence that the plaintiff exposed the property insured to the additional hazard of habitually keeping gasoline on the premises for a considerable time before you will be warranted in finding that the plaintifif violated the prohibition against keeping or al- lowing gasoline on the premises.^" §594. Fire insurance — Explosion. — (1) The court in- structs the jury that when the word "explosion" was used in the " Mitchell V. Potomac Ins. Co., 183 " Clute v. Clintonville Mut. Fire U. S. 42, 22 Sup. Ct. 22, 46 L. ed. Ins. Co., 144 Wis. 638, 129 N. W. 661, 74. 32 L. R. A. (N. S.) 240. "Phoenix Ins. Co. v. Fleenor, 104 Ark. 119, 148 S. W. 650. 659 INSURANCE. § 594 policy, the company as ordinary men — at least its officers were ordinary men, and not, as I assume, scientific men — and the party insured an ordinary man, are presumed to have understood the word "explosion" in its ordinary and popular sense. Not what some scientific man would define to be an explosion, but what the ordinary man would understand to be meant by that word. And, after all, the question here being explosion or nonexplosion, is, What do you, as ordinary men, understand occurred at that time in the light of all the testimony? Was it an explosion in the or- dinary and popular sense of that word, or was it a fire with a subsequent explosion or a subsequent collapse of the building as a sequence to the fire ?" (2) The court instructs the jury that if you find from the evi- dence that the plaintifif has established his case by a preponder- ance of all the evidence, that plaintifif's building or some part thereof fell by reason of some concussion occurring outside his building (for I recall no evidence tending to show an explosion or concussion inside said building), or from fire either outside or inside said building, and that plaintiff has otherwise so proved his contentions, and that, through such explosion or fire, fire in plaintiff's building ensued or was communicated thereto from without, and his said stock was destroyed or damaged, then plaintiff is entitled to recover herein for such loss as hereinafter stated. If, however, you find that plaintiff's building, or some ma- terial part thereof, fell by reason of its own defects, or overload- ing, or both, plaintiff can not recover for ensuing fire loss, under the terms of the policy sued on.^^ -(3) The court instructs the jury that a match lighted and held by an employe of the plaintiff coming in contact with the vapor and causing an explosion is not to be considered as "fire" within the meaning of the policy.^' (4) The court instructs the jury that if an explosion occurred from contact of escaping vapor with a match lighted and held by " Mitchell V. Potomac Ins. Co., 183 " Mitchell v. Potomac Ins. Co., 183 U. S. 42, 22 Sup. Ct. 22, 46 L. ed. 74. U. S. 42, 22 Sup. Ct. 22, 46 L. ed. 74. "'Orient Ins. Co. v. Leonard, 120 Fed. 808, 57 C. C. A. 176. § 594 INSTRUCTIONS FORMS. 66o an employe of the plaintiff, and the loss resulted solely from such explosion, the verdict must be for the defendant.^" (5) The court instructs the jury that there is some evidence in the case tending to show that an explosion or an explosive sound was heard by some of the witnesses on or near the premises on C. street at or about the time the fire was discovered on those premises. Should you find that the fire on those premises was caused by and ensued upon an explosion of any kind, then your verdict must be for the plaintiff, since it is admitted that the fire from those premises was the one which burned the plaintiff's property; and, if it was started by and ensued upon an explosion, it would not be an earthquake-caused fire within the terms of the policy. But if you find that the fire was first communicated to those premises by and caught from an earthquake-caused fire in the manner I have indicated, and that after the premises had been ignited therefrom, such fire came in contact with an ex- plosive substance thereon, causing it to explode, and then con- tinued to burn to and consume plaintiff's property, such a fire would not be within this provision of the policy a fire ensuing upon an explosion, but would still retain its character of an earthquake-caused fire. In such a case the origin of the fire is not changed by the intervention of the explosion which it has it- self caused, although the explosion may, or may not, to some ex- tent, have accelerated its action and spread. It would not be different than if the fire had come in contact with a substance highly combustible and inflammable, though not explosive, which might greatly increase its volume and accentuate its spread, but it would still be the same fire thereafter as before ; it would not create a new cause, but the cause would still remain the same. That is to say, it does not change the relation of causes in a legal sense to substitute a substance upon which fire acts, both inflammable and explosive, for one which is merely com- bustible. The only difference in the elements of the question in such an instance would be that the explosive substance when ig- nited would consume with more rapidity than the one merely com- bustible. The active agent is still the fire, though it acts in dif- '' Mitchell V. Potomac Ins. Co., 183 U. S. 42, 22 Sup. Ct. 22, 46 L. ed. 74. 66l INSURANCE. § 595 ferent ways upon the successive subjects of its action, and, if it was at first an earthquake fire, it still remains so, notwithstand- ing the explosion. To constitute the explosion a new or independ- ent causae, it must be a fire, as I have stated, originated by and ensuing upon explosion, not one which in its course incidentally causes an explosion. In the latter case explosion is merely an in- cident, and not the cause. ^^ § 595. Fire insurance — Destruction of property by incen- diary. — (1) The court instructs the jury that if from the whole evidence'you find that G. W. M. had control, management, and power of disposition of this property the same as if he had the title, or that there was an understanding among them [the stock- holders] that he should burn the property in order that they might collect the insurance, and that G. W. M. did, as alleged by the defendant, wilfully set fire to his store on the night of , 19 — , then you should find a verdict for the defendant.^^ (2) The court instructs the jury that if they shall believe from the evidence that an attempt was made to burn the house in question before the policy of insurance sued on herein was is- sued, and that plaintiffs knew thereof, and that the agent of the defendant who solicited the insurance (H.) did not know of the said attempt when the policy was issued, and the plaintiffs con- cealed that fact from him for the purpose of obtaining insurance, then the law is for the defendant, and the jury should so find.^^ (3) The court instructs the jury that in view of the large amount of testimony offered, consisting of papers, documents, and oral evidence, and in view, also, of the amount involved, and the serious character of the charge, you should carefully scrutinize, examine and weigh each and every item of evidence, together with all the circumstances proved on the trial, and give to it such weight as in your judgment seems right ; and if you be- lieve, from a preponderance of the evidence, that the plaintiff, by one of its members, W. R. C, wilfully caused or procured " German Savings &c. Soc. v. Com- "^ Meily Co. v. London &c. Fire Ins. mercial Union Assur. Co., 187 Fed. Co., 142 Fed. 873. 758, 109 C. C. A. 506. " German-American Ins. Co. v. § 596 INSTRUCTIONS FORMS. 662 the property insured to be set on fire, then the plaintiff can not recover, and your verdict should be for the defendant." § 596. Fire insurance — Vacancy of premises. — The court instructs the jury that it is claimed on the part of the defense that the policy is void because the mill property was allowed to remain idle and not operated for a longer period than the winter season; and the defendant takes the burden upon itself, as you saw in the giving of testimony, to establish the fact or claim, under that language in the policy, either as a question of law, or a question of fact for the jury, or both, that the mill was idle be- yond the period, and later than the winter season.'^ §597. Fire insurance — Inventories. — (1) The court in- structs the jury that the failure on the part of plaintiffs to comply with the provisions of the policy as to keeping books and inven- tories and keeping the same in a safe place would not defeat the right of recovery, but that the provision in the policy requiring plaintiffs to produce such books and inventories in case of loss made it incumbent upon plaintiffs to reasonably and substantially comply therewith when called upon by defendant to do so, and that a failure of plaintiffs to produce such books and inventories would defeat plaintiffs' recovery unless a waiver of the breach of the condition of the policy in this respect was shown.^° (2) The court instructs the jury that the policy sued on herein contains the following covenants : "The assured shall take a com- plete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken of the property covered by this policy within twelve calendar months prior to the date thereof fine shall be taken in detail within thirty days after the date thereof". "And the assured shall keep a set of books, which shall clearly and plainly represent a complete record of business transacted, including all purchases, sales, and shipments, both for cash and credit, from the date of the in- Norris, 100 Ky. 29, 18 Ky. L. 537, 37 '= Barker v. Citizens' Mut. Fire Ins. S. W. 267, 66 Am. St. 324. Co., 136 Mich. 626, 99 N. W. 866. "The Pennsylvania Fire Ins. Co. ''"Rundell v. Anchor Fire Ins. Co. V. Carnahan, 19 Ohio C. C. 97. (Iowa), 101 N. W. 517. 663 INSURANCE. § 598 ventory", and upon the plaintiff's failure to keep and perform all of the said covenants, then the said policy shall be null and void. So, therefore, if you believe from the evidence that the said plaintiff has failed, refused, or neglected to comply substan- tially virith either or all of said covenants, then the plaintiff can not recover in any sum whatever herein and you will find for defendant." § 598. Fire insurance — Extent of loss. — (1) The court in- structs the jury that if the jury believe from the evidence that any wine, whiskey, brandy, beer, tobacco, cigars, or other mer- chandise was destroyed, then it will be for the jury to find from the evidence how much of such liquors or other merchandise was destroyed, and the market value thereof ; and if the jury can not find from the evidence the market value of the liquors or mer- chandise destroyed, then they can not find for the plaintiff as to such liquors or merchandise. Unless the evidence shows that the policy sued on was transferred by H. A. F. to E. F. on the day of , they will find for the defendant.^* (2) The court instructs the jury that if the property or any part of it was so damaged by fire as to render it useless for the purposes for which it had been used, then there is a destruction within the meaning of the law.^® (3) The court instructs the jury that by "cash value" is meant the cash market value at the time and place where the property was situated, and where the fire occurred, and if there was such a market value. If there was no such market value there, then the cash value in the nearest adjacent markets; or, if that is not shown, then the intrinsic value of the property. In determining the cash market value at the time and place where the fire oc- curred, you may consider the intrinsic value of the property ; what value, if any, it had in other adjacent markets ; the ease or diffi- culty of transporting it from place to place ; the demand or lack of "Greenwich Ins. Co. v. State, 74 Feibelman, 118 Ala. 308, 23 So. 759. Ark. 72, 84 S. W. 1025. For instruction as to extent of loss, '^ Manchester Fire Assur. Co. v. see Caledonia Fire Ins. Co. v. Traub, Feibelman, 118 Ala. 308, 23 So. 759. 86 Md. 86, Zl Atl. 782. "■Manchester Fire Assur. Co. v. § 599 INSTRUCTIONS FORMS. 664 it for such property; that it was second-hancl, if it was such; the deterioration, if any, from value at first hand; the price paid for it by plaintiff and ; the opinion of witnesses who knew the market or other value, if such are in evidence ; and all other facts and circumstances in evidence tending to show the value. Prospective and unrealized profits are not to be taken into con- sideration, but realized profits may be taken into consideration.'" (4) The court instructs the jury that damages and attorney's fees can not be recovered, unless you find from the evidence that the insurance company has acted in bad faith. "Bad faith" means a frivolous or unfounded refusal in law or in fact to com- ply with the requisites of the policy, to pay according to the terms of the policy and the conditions imposed by the statutes.'^ (5) The court instructs the jury that a building is not con- sidered a total loss by fire so long as its identity as a building is left, and so long as the remnant may be reasonably adapted to use as a basis upon which to restore the building to the con- dition in which it was before the injury. But it is a total loss unless the remnant after the fire is of that substantial character that, if the same was restored or repaired, it would be considered the old structure and not a new building.^^ § 599. Fire insurance — Proof of loss. — ( 1 ) The court in- structs the jury that if they shall believe from the evidence that within sixty days after the loss complained of the defendant denied that it was liable under the policy sued on, then it was not necessary for the plaintiffs to furnish the defendants with proofs of loss.^^ (2) The court instructs the jury that they should find for the plaintiffs in the sum of $ , with interest from the day of , 19 — , unless they shall believe from the evidence that the defendant did not, within sixty days after the loss com- plained of in the petition, deny liability under the policy sued on, and that the plaintiffs failed, within sixty days after the '" German-American Ins. Co. v. '''Fire Assn. v. Strayhorn (Tex. Brown, 7S Ark. 251, 87 S. W. 135. Civ. App.), 165 S. W. 901. " American Ins. Co. v. Bailey, 6 " German-American Ins. Co. v. Ga. App. 424, 65 S. E. 160. 665 INSURANCE. § 600 loss, to furnish to the defendant or its agents sufficient proofs of said loss, or that an attempt had been made to burn the house in question before the policy sued on was issued, and that this fact was unknown to the agent of defendant when he solicited plaintiffs to insure, and that plaintiffs, or either of them, con- cealed that fact from said agent for the purpose of obtaining insurance."* (3) The court instructs the jury that if the plaintiffs did not, within sixty days after the said loss, furnish to the defend- ant sufficient proof thereof, then the law is for the defendant, and so the jury should find, unless the defendants demanded other and further proof that it was within the power of plain- tiffs to furnish, and plaintiffs did furnish the further proof de- manded within a reasonable time after the same was demanded.^" (4) The court instructs the jury that if they believe from the evidence that the defendant, for a month or more after be- coming aware of the fact that the policy here sued on was for- feited by reason of the violation of one of the conditions of the policy, and until the proofs of loss were furnished, remained silent and inactive, but that upon receiving the proofs of loss the defendant immediately notified the plaintiff that the policy was forfeited and that after such notification the defendant per- formed no acts inconsistent with such claim of forfeiture, then if the jury believe from the evidence that the plaintiff was in no way misled by any act or statement of the defendant to his prejudice, the jury are instructed that the waiver of such for- feiture is not established.^^ § 600. Fire insurance — Transfer of policy. — The court in- structs the jury that mere notification within itself is not suffi- cient to change the character of the stipulations written by de- fendant in its policy for the insured, J. D. The law requires notification on one side of the part of the insured and assent Norris, 100 Ky. 29, 18 Ky. L. S37, 37 == German-American Ins. Co. v. S. W. 267, 66 Am. St. 324. Norris, 100 Ky. 29, 18 Ky. L. 537, 37 '* German-American Ins. Co. v. S. W. 267, 66 Am. St. 324. Norris, 100 Ky. 29, 18 Ky. L. 537, 37 " Gibson Elec. Co. v. Liverpool &c. S. W. 267, 66 Am. St. 324. Ins. Co., 159 N. Y. 418, 54 N. E. 23. § 6oi INSTRUCTIONS FORMS. 666 to said transfer on the part of the insurer. The court charges you that, if notification is given by the insured and received by the insurer, assent to said transfer will be presumed, unless the insurer or some one authorized to act for it declines to ac- cept the transfer so made.^^ § 601. Life insurance — Misrepresentations as to health of assured in application. — (1) The court instructs the jury that if it is shown by the fair preponderance of the evidence that, in his answer to any one or more of the interrogatories which are charged by the defendant as having been untruthfully an- swered, the applicant, W. L., answered them, knowing at the time that the answer so given by him was false and untrue, or if he in making such answers, or any one of them knowingly concealed any fact which he was in good faith at the time re- quired to state, then the plaintiff can not recover.^^ (2) The court instructs the jury that, unless they find from the evidence that at the time F. applied for the policy of in- surance sued on, to wit, , 18 — , he intended to perpetrate frauds of the character which the defendant claims he did there- after perpetrate, the jury must disregard all the testimony con- cerning said alleged frauds.^' (3) The court instructs the jury that, if on the day of , the insured, B. P. B., had cystic disease of the kidneys, or had cystic degeneration of the kidneys, or had tumors of the kidneys, he was not in sound health on that day, and the de- fendant is entitled to a verdict in its favor." (4) The court instructs the jury that if the insured, B. P. B., was not in sound health on the day of , the defendant is entitled to a verdict in its favor.*^ (5) The court instructs the jury that "sound health", as used with reference to life insurance, means that state of health, °' Northern Assur. Co. v. Morrison "Barker v. Metropolitan Life Ins. (Tex. Civ. App.), 162 S. W. 411. Co., 188 Mass. 542, 74 N. E. 945. For "' Ley V. Metropolitan Life Ins. Co., similar instructions, see Blumenthal 120 Iowa 203, 94 N. W. 568. v. Berkshire Life Ins. Co., 134 Mich. ™ Christian v. Connecticut Mut. 216, 96 N. W. 17, 104 Am. St. 604. Life Ins. Co., 143 Mo. 460, 45 S. W. " Barker v. Metropolitan Life Ins. 268. Co., 188 Mass. 542, 74 N. E. 945. 66/ INSURANCE. § 60I free from any disease or ailment, that affects the general sound- ness and healthfulness of the system seriously, and not a mere indisposition, which does not tend to weaken or undermine the constitution of the assured. The word "serious" is not generally used to signify a dangerous condition, but rather a grave or a weighty trouble.*^ (6) The court instructs the jury that if you find from the evidence that H. was not in sound health on the dates of the policies, but did not know it, you must find for the defendant.*^ (7) The court instructs the jury that "sound health" means that state of health which is free from any disease or ailment which affects the general healthfulness of the system seriously, — not a mere indisposition.** (8) The court instructs the jury that, if the defendant com- pany seeks to avoid the payment of said policy on the grounds that the deceased has been guilty of material misrepresentations and fraud, the burden of proving the misrepresentations and fraud is on the defendant company; that he who alleges fraud must clearly and distinctly prove it. It is not to be assumed on doubtful evidence or circumstances of mere suspicion. The law never presumes fraud, but the presumption is always in favor of innocence and honesty.*^ (9) The court instructs the jury that, if they believe from a preponderance of the evidence, as hereinbefore defined, that the answers to questions numbered and , or either of them, in the report of the medical examiner, were clearly not true, and that said questions and the answers thereto are clearly shown to have been material, then they must find for the de- fendant company.*" " Metropolitan Life Ins. Co. v. 945 ; Williford v. Aetna Life Ins. Co., Howie, 62 Ohio St. 204, 56 N. E. 908. 64 S. Car. 329, 42 S. E. 165. ^^ Metropolitan Life Ins. Co. v. '"Metropolitan Life Ins. Co. v. Howie, 62 Ohio St. 204, 56 N. E. 908. Howie, 62 Ohio St. 204, 56 N. E. 908. Applicant's condition of health, as af- ^^ Life Ins. Co. v. Hairston, 108 Va. fecting liability of company, see 832, 62 S. E. 1057, 128 Am. St. 989. Blumenthal v. Berkshire Life Ins. ■"" Life Ins. Co. v. Hairston, 108 Va. Co., 134 Mich. 216, 96 N. W. 17, 104 832, 62 S. E. 1057, 128 Am. St. ^89 Am. St. 604; Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, 74 N. E. § 602 INSTRUCTIONS FORMS. 668 § 602. Life insurance — Powers of agent as to application. — The court instructs the jury that where an agent of an insur- ance company having real or apparent authority to receive an application for insurance is truly informed by the assured of the facts relating to the risk, but incorrectly states them in a written application for insurance prepared by him and without the knowledge or consent of the assured, the insurance com- pany is estopped from insisting upon a forfeiture of the policy issued upon such application on account of such statement.*^ § 603. Life insurance — Prohibited occupations. — The court instructs the jury that the by-laws of the defendant society pro- vide that engaging in or entering on, or continuing in, the occu- pation of railroad locomotive fireman by any beneficiary mem- ber of the society shall totally exempt said society from any and all liabilities to such member, his beneficiary or beneficiaries, on account of the death of such member directly traceable to em- ployment in such hazardous occupation, unless such member shall have complied with the by-laws of the defendant extending his certificate to cover the hazards of such occupation and shall have made application therefor and paid the increased rate provided in the by-laws of members engaging in such hazardous occupa- tions, and you are instructed that if you find from the evidence that the said C. S. Q., after signing the application herein, en- gaged in the occupation of railroad locomotive fireman, without having complied with the defendant's by-laws extending his certificate to cover the hazards of his occupation and without having made application therefor and paid the increased rate required by the by-laws for members engaging in such hazard- ous occupations, then you are instructed that the defendant herein would be totally exempted from any and all liability to such member, his beneficiary or beneficiaries, on account of the death of such member directly traceable to employment in such hazardous occupation.*^ " Royal Neighbors V. Boman, 75 111. "'Quick v. Modern Woodmen, 91 App. 566. Nebr. 106, 135 N. W. 433. 669 INSURANCE. § 604 § 604. Life insurance — Excessive use of intoxicants by as- sured. — (1) The court instructs the jury that the contention of the company is that the deceased became intemperate to such an extent that it endangered his health or impaired his health, and that the company, under that clause which I have just read to you, claimed that it had the right to cancel the policy to the extent of any further insurance ; but it simply admits it is liable under section 8; that is, if three or more premiums have been paid, they pay over what is known as the "legal reserve", with interest. That is the liability that the company admits it is due the plaintiff. Now, gentlemen, I am going to submit this case to you upon this question of fact. I charge you that it is a part of the contract entered into by the parties, that if the insured, W., became intemperate to such an extent as to impair his health at the time the policy was canceled, that the company would have the right under that clause to have canceled the policy. But to make it binding, it must appear by affirmative testimony in this case that, at the time the policy was canceled, W. was intemperate, at that time, to such an extent as to impair his health. Now, as I understand, that does not mean a drink, — an occasional drink; but he must have indulged in the use of alcoholic stimulants to such an extent as to impair his health or to give him delirium tremens, and that impairment must have been at the time that this policy was canceled, because that is the authority under which the company daims to have can- celed it, and that is the only authority by which it could have canceled it. His being drunk at a subsequent time, or his health being impaired subsequently, would not authorize the cancel- ation of the policy, unless his health was impaired by the use of stimulants at the time of the cancelation of the policy. Now, that brings up the case for you to try. At the time this check was tendered to the company, was the health of the insured so impaired, at that time, by intemperance, as to justify and war- rant the company in canceling the policy under that clause? If his health was impaired at that time by intemperance, I charge you the company would have the right to cancel the pohcy. But if at the time the check was tendered he was not intemperate § 605 INSTRUCTIONS FORMS. 67O to the extent of impairing his health, the company would not have the right to cancel the policy; and, under its own terms, after five payments the insured could go on in that event for nine years and fifty-nine days. What was the state of health of the insured at the time the check was tendered to B ? Was his health so impaired by the use of alcohoHc spirits? Had he indulged in alcohol to such an extent as to impair his health? If so, the company would have the right to cancel the policy to the extent of that reserve fund. If it was not impaired by the use of such stimulants, then the company would have no right to rescind the contract, and it would be binding in that event upon the company.*' (2) The court instructs the jury that the assured, C. M. S., was not intemperate in the use of alcoholic liquors or beverages within the meaning of the word "intemperate" as used in the benefit certificate and by-laws of the defendant society, even though you believe from the evidence in this case, that he drank alcohoHc liquors or beverages to excess upon exceptional occa- sions, unless you further believe from a preponderance of the testimony in this case that said assured was addicted to periodical and excessive indulgences in the use of alcoholic liquors or bev- erages which became habitual.'" § 605. Life insurance — Suicide of assured. — (1) The court instructs the jury that suicide or self-destruction, as these terms are to be understood in the law, implies that the act was delib- erately done by a person capable, in law, of forming a legal in- tention to do the act ; and if you find, from the evidence in this case, that the said W. W. was insane at the time he took his life, and even though he intended that the result of his act should be death, yet if his reasoning faculties were so far im- paired that he was not able to understand the moral character, the general nature, consequence and effect of the act he was about to commit, or if he was impelled thereto by an insane im- pulse which he had not the power to resist, then his act was *°WilIiford V. Aetna Life Ins. Co., ''° Schon v. Modern Woodmen, 51 64 S. Car. 329, 42 S. E. 16S. Wash. 482, 99 Pac. 2S. 671 INSURANCE. § 605 not suicide in the legal sense of those terms, and you should find the issues in favor of the plaintiff, so far as that issue is con- cerned.^^ (2) The court instructs the jury that if they believe, from the evidence, that said W. W. came to his death by hanging himself, and although the jury may further believe, from the evidence, that said W. W. was then insane and that he acted under the influence and impulse of insanity, and that his act of self-destruction was the direct result of insanity, yet if the jury further believe, from the evidence, that said W. W. was not then in a state of madness or delirium and that such act of self-destruction was the result of the will and intention of said W. W., he adapting the means to the end and contemplating the physical nature and effects of the act, then the court instructs the jury, as a matter of law, that the defendant is not liable on the beneficiary certificate sued on, except to the extent of the amount paid by the said W. W. into the beneficiary fund of the defendant by virtue of said beneficiary certificate.^^ (3) The court instructs the jury that if they beheve, from the evidence, that said W. W. took his own life, that fact alone does not raise a presumption, and is not of itself evidence, that he was insane at the time of committing said act, but the jury may weigh such act and circumstances attending it, so far as "The beneficiary certificate con- act, the assured was so affected with tained the following provision : "Pro- insanity as to be unconscious of the vided, however, that should the said act or of the physical efifect thereof, W. W. commit suicide, then and in or was driven to its commission by an that case only the amount paid by the insane impulse which he had not the said W. W. into the beneficiary fund power to resist, the act of self-de- by virtue hereof shall be paid to the struction is regarded as though it beneficiaries above mentioned, which were the result of accident or some said amount shall be in full of all de- irresistible external force, and the mands whatsoever arising out of or proviso of a policy framed as the one under this beneficiary certificate." at bar, or where other phrases denot- The Supreme Court of Illinois, in ing self-destruction are used, will not sustaining the foregoing instruction, attach, but the insurer will be held says : "It is believed there is a liable." Grand Lodge v. Wieting, 168 substantial concurrence of judicial de- 111. 408, 48 N. E. 59, 61 Am. St. 123. cision in America on the proposition ""Grand Lodge v. Wieting, 168 111. that if, at the time of the suicidal 408, 48 N. E. 59, 61 Am. St. 123. § 605 INSTRUCTIONS FORMS. 672 disclosed by the evidence, in connection with all the evidence in the case bearing on that question, in determining his mental condition at the time of the act of self-destruction.^^ (4) The court instructs the jury that they are the sole judges of the facts in this case,* and although the jury may believe, from the evidence, that said W. W. at times acted strangely and in such a manner as to cause some people to believe him to be insane, yet if they believe, from all the evidence in the case, that said W. W., when he committed the act of hanging himself by his own hand, was not so insane but that he knew what he was doing, that he knew death would result from the act and that he committed the act intentionally to put an end to his life, and that at the time his mental faculties were not so impaired but that he was able to understand the moral character and general nature, consequence and effect of the act he was about to commit, and that he was not impelled thereto by such an in- sane impulse as he had not the power to resist, then the court instructs the jury, as a matter of law, that the defendant is not liable upon the beneficiary certificate sued on in this case, except to the extent of the amount paid by the said W. W. into the beneficiary fund of the defendant, which it is admitted by the parties is the sum of dollars.'^* ( 5 ) The court instructs the jury that the presumption of law against suicide may be overturned not only by verbal testimony, but by reasonable deductions from the facts established; that on this question you are to be governed by what is the reason- able probability; that the fact of suicide need not be shown beyond a reasonable doubt, but by a mere preponderance of the evidence/^ (6) The court instructs the jury that it is not necessary that the defendant should prove that decedent, B. W. S., committed suicide, by direct evidence, but can prove same by facts and circumstances. In passing on this question, you will take into ""Grand Lodge v. Wieting, 168 111. "^ Modern Woodmen v. Kincheloe, 408, 48 N. E. 59, 61 Am. St. 123. 175 Ind. 563, 94 N. E. 228, Ann. Cas. "Grand Lodge v. Wieting, 168 111. 1913C, 12S9. 408, 48 N. E. 59, 61 Am. St. 123. 673 INSURANCE. § 605 consideration the condition in which the body of decedent was found, the location of the revolver with reference to the body of decedent, the time of day, the place, the condition of mind of the decedent, his physical condition, the fact, if it is a fact, that there is an absence of any explanation as to his death having been caused by any other person than himself, all as shown by the evidence in the case, and all other facts and circumstances shown by the evidence in the case bearing on this question and if, therefrom, you find by the greater weight or preponderance of the evidence that the said B. W. S. killed himself, then your verdict will be in favor of the defendant.^^ (7) The court instructs the jury that though plaintiff in sub- mitting her proof of the death of her husband, W. B. B., may have stated in answer to an interrogatory, that his death was the result of suicide, yet you are instructed that if you believe from the evidence that when she made that statement she only stated what she was informed of by others and not what she knew of her own personal knowledge, and if you further be- lieve from the evidence that the plaintiff has no personal knowl- edge of the manner of her husband's death, then the fact that the proof of loss contains the statement that her husband came to his death by suicide is simply to be considered by you as a circumstance in the case in connection with all the other evi- dence in determining the main question of whether or not he, W. B. B., came to his death as a result of a self-inflicted wound.°' (8) The court instructs the jury that the burden rests upon the defendant to show by the preponderance or greater weight of the evidence that the deceased took his own life by suicide, as defined above.°^ (9) The court instructs the jury that if you believe and find from all the facts and circumstances shown in evidence in this case that the deceased ended his own life by voluntary and in- " Scott V. Sovereign Camp W., of '*Bamberge v. Supreme Tribe, 1S9 W., 149 Io\va 562, 129 N. W. 302. Mo. App. 102, 139 S. W. 235. "Bamberge v. Supreme Tribe, 159 Mo. App. 102, l39 S. W. 235. 43 — Branson's Inst. § 6o6 INSTRUCTIONS FORMS. 674 tentional suicide, then you should return a verdict in favor of the plaintiff for one-fifth, only, of the amount payable under said benefit certificate without interest thereon if you find that defendant tendered that sum to plaintiff when proof of death was made and with interest thereon at the rate of per cent, per annum from the day of , , the date when this suit was instituted, if you find no tender was made, including in your verdict the amount of such interest, if any.^" (10) The court instructs the jury that if you find and believe from all the facts and circumstances shown in evidence in this case that the deceased did not end his own life by voluntary and intentional suicide, then you should return a verdict in favor of the plaintiff for the full amount payable under said benefit certifi- cate, with interest thereon at the rate of per cent, per annum, from the day of , , including in your verdict the amount of such interest.'" §606. Accident insurance. — (1) The court instructs the jury that the question of whether the circumstances of a par- ticular accident bring it within one of the exceptions by which the company has guarded itself against an accident resulting from voluntary exposure to unnecessary danger is not a ques- tion whether the person insured has exercised reasonable care or caution, nor whether he has been guilty of negligence or of unlawful acts, but it is a question whether or not the insurance company has shown — the burden being upon it to do so — that the insured voluntarily exposed himself to unnecessary danger, and that the death resulted in consequence thereof." (2) The court instructs the jury that upon the question as to whether peritonitis, if that caused his death, is to be deemed a "disease", within the meaning of this policy, and the proximate cause of death, within the meaning of this policy, so as to pre- vent a recovery, depends upon the question whether or not be- fore the time of the fall, and at the time of the fall, he had then "Bamberge v. Supreme Tribe, 159 °^De Greayer v. Fidelity &c. Co., Mo. App. 102, 139 S. W. 235. 126 Cal. 17, 58 Pac. 390. "Bamberge v. Supreme Tribe, 159 Mo. App. 102, 139 S. W. 235. 675 INSURANCE. § 606 the disease, was then suffering with the disease. If he was, then, in the sense of the poHcy, although aggravated and made fatal by the fall, he can not recover. But if, owing to existing lesion caused by that disease, but having not the disease at the time, the same kind of malady, that is, peritonitis, was started up, the company are to be answerable, although, if there had been a normal state of things, the fall would not have occasioned such a result."^ (3) The court instructs the jury that the defendant's claim was that the cause of death was illness, and has made a tender into court which has been put in evidence, and if the death re- sulted from illness then the plaintiff is entitled to that money, and will get it without further ceremony, and that leaves then the issue for you to try, which has been submitted to you, the issue of whether or not death was or was not caused by the accident.*^ (4) The court instructs the jury that it is provided in the by-laws of the defendant association, which is a part of the contract sued on, that no benefits shall be paid for death caused wholly by disease, nor in any case except when the accidental injury was the proximate and sole cause of the death. Under the terms of this contract, the defendant is only liable in the event that death resulted solely, and independently of all other causes, from the alleged accident, and this the plaintiff must prove by a preponderance of the evidence; This provision of the by-laws of the defendant association entered into became and was at the time of the death of the said L. O. V., a part of the contract between him and the defendant association, and is binding upon the plaintiff and the defendant association in this case. If you find by a preponderance of the evidence that an accident happened to the deceased, L. O. V., by an abrasion of the skin of his left leg by the use of a brush by an attendant administering said bath, and that from such abrasion blood poison or septicaemia set in, and you further find that by virtue "' Freeman v. Mercantile Mut. Ace. " Thompson v. Loyal Protective Assn., 156 Mass. 351, 30 N. E. 1013, Assn., 167 Mich. 31, 132 N. W. 554. 17 L. R. A. 753. § 607 INSTRUCTIONS FORMS. 676 of this injury and the resulting blood poison, if you find there was such injury and blood poison, death resulted as the sole re- sult thereof, then and in that event the plaintiff will be entitled to recover in this case, and you should so find by your verdict. If, however, you find that the death of the said L. O. V. re- sulted directly or indirectly from or in consequence of disease, then there can be no recovery in this case, and your verdict in that case should be for the defendant."* (5) The court instructs the jury that if they find from the evidence that J. T. G. did slip, fall or wrench his body in any way, and that such occurrence was caused by apoplexy or a cere- bral hemorrhage brought on by a diseased condition of his arteries, the plaintiff can not recover.®^ (6) The court instructs the jury that if they find from the evidence that J. T. G. accidentally slipped and fell from a stool and that such fall was the direct cause of a bursting of the blood vessels in the brain which resulted in his death, then the fall was the direct cause of death, notwithstanding the jury may find that said G. was suffering from diseased arteries, heart and kidneys.'^ § 607. Accident insurance — Injury through external, vio- lent and accidental means. — (1) The court instructs the jury that this paragraph sets out as an exhibit a copy of the policy, and in said policy it is provided that no claim shall ever accrue unless it arises from physical, bodily injury, through external, violent, and accidental means, and then only when the injury shall, independently of all other causes, immediately and wholly disable the insured from performing any and every kind of business pertaining to his occupation as manager of the W. C. Company. I instruct you that, as a matter of law, the meaning of this provision of the policy is not that the plaintiff must have been disabled so as to prevent him from doing anything what- " Johnson v. Scott, 119 Minn. 470, '"Goodes v. United Commercial 138 N. W. 694. Travelers, 174 Mo. App. 330, 156 S. "^ Goodes V. United Commercial W. 995. Travelers, 174 Mo. App. 330, 156 S. W. 995. 677 INSURANCE. § 607 soever pertaining to his said occupation, but that he must have been disabled only to the extent that he could not do any and every kind of business pertaining to his said occupation. He might be, able to do a part, and not be able to do all, and, be- cause he was not able to do all, be deemed to be wholly disabled from doing any and every kind, provided, of course, that he was so disabled as to be prevented from doing substantially all the necessary and material things in said occupation requir- ing his own exertions in substantially his customary and usual manner of so doing. He might be able to do personally minor and trivial things, not requiring much time or physical labor, and through others, acting under his direction, to do the heavier things requiring physical exertion, which in the ordinary and proper performance of his duties he had heretofore done per- sonally, and yet, because of inability to do these heavier things and more material things personally, be said to be wholly dis- abled, within the terms of his policy, provided, further, that the things he was unable to personally do constitute substantially all of his said occupation.®' (2) The court instructs the jury that the burden of proof in this case is upon the plaintiff, and the plaintiff must show, before the plaintiff can recover, by the preponderance of proof — ^that is, by the greater weight of the testimony — that the plaintiff's death was caused, alone and independently of other causes, by a bodily injury, which bodily injury must have been by accidental means, leaving upon the body marks of contusion, or wounds, visible to the naked eye. That states the ultimate facts which the plaintiff must prove by the greater weight of testimony, before the plaintiff can recover.®' (3) The court instructs the jury that this involves proofs of two points : First, that the death was the result of accidental injuries, and, second, that these accidental injuries left upon the body marks of contusion, or wounds, visible to the naked eye. Both of these points are to be proved, before the plaintiff can "Commercial Travelers' Mut. Ace. , "Thompson v. Loyal Protective Assn. V. Springsteen, 23 Ind. App. Assn., 167 Mich. 31, 132 N. W. 554. 657, 55 N. E. 973. § 6o8 INSTRUCTIONS FORMS. 6/8 recover, and you will have that thought in mind in respect to all I say hereafter in giving the charge."' (4) The court instructs the jury that the plaintiff is not en- titled to recover in this action unless the said J. T. G. came to his death on or about the day of , 19 — , as the re- sult of external, violent and accidental means, alone, independent of all other causes, and the burden of proof is upon the plaintiff to establish to the satisfaction of the jury that the death was caused by external, violent and accidental means alone, inde- pendent of all other causes ; and unless you believe that the plain- tiff has established by a preponderance of the testimony that the death of said G. was caused by external, violent and acci- dental means, alone, independent of all other causes, that then your verdict must be in favor of the defendant.'" (5) The court instructs the jury that if they find from the evidence that on the day of , 19 — -, J. T. G. was a member in good standing in the defendant corporation and that while in such standing his death occurred, and that the direct cause thereof was bodily injury effected through external, violent and accidental means, alone, independent of all other causes, within six months of the happening of such accident, and that such death did not happen directly or indirectly in consequence of disease and was not caused wholly or in part by bodily in- firmity or disease, and that there were external and visible evi- dences or marks of such accident on the body of the deceased, and that the defendant, after notice of said death and presenta- tion of claim, disclaimed all liability on other grounds than want of sufficient proofs of death, then plaintiff is entitled to recover the sum of $ with interest thereupon from the day of , 19 — , to this date, at the rate of six per cent, per annum." § 608. Accident insurance — Visible marks. — The court in- structs the jury that the visible marks on the body required by the policy need not become visible immediately upon the hap- " Thompson v. Loyal Protective Travelers, 174 Mo. App. 330, 156 S. Assn., 167 Mich. 31, 132 N. W. SS4. W. 995. "Goodes V. United Commercial "Goodes v.- United Commercial 679 INSURANCE. § 6io pening pt the accident, in order to entitle plaintiff to recover ; but it is sufficient if they appear in some reasonable time there- after. The mark visible to the eye on the body required by the policy need not be a bruise, contusion, laceration, or broken limb, but may be any visible indication of an internal injury which may appear within a reasonable time after the injury is received, such, for instance, as discoloration of the part of the body affected." § 609. Accident insurance — Violation of condition of pol- icy. — The court instructs the jury that one of the defenses relied on by the defendant in this case is that the cause of death of the deceased, S. E. S., was his leaving or trying to leave a moving conveyance, using steam as a motive power, in viola- tion of the terms and conditions of the policy in suit. Upon this question you are instructed that, in order to sustain its defense, the burden is upon the defendant to show by a fair preponder- ance of the credible evidence before you that the deceased at the time of receiving the injury resulting in his death, was pur- posely leaving or trying to leave the car upon which he was riding, and did not accidentally slip or fall from the steps upon which he was standing immediately prior to said accident. The fact that deceased was standing upon the platform and steps of the car immediately prior to said accident would not constitute a defense, under this clause of the contract, unless he was at such time purposely leaving or trying to leave such car and steps, and to alight therefrom.'' ■'&* § 610. Accident insurance — Extent of loss. — ( 1 ) The court instructs the jury that the loss of business must be immediately consequent upon the injuries sustained, and must be thereafter continuous during any period of time for which the plaintiff may recover. If the plaintiff suffered a loss of business time, and afterwards his injuries, if any, improved so that he suffered Travelers, 174 Mo. App. 330, 156 S. "Smith v. Aetna Life Ins. Co., US W. 995. Iowa 217, 88 N. W. 368, 56 L. R. A. "Thompson v. Loyal Protective 271, 91 Am. St. 153. Assn., 167 Mich. 31, 132 N. W. 554. §6ll INSTRUCTIONS FORMS. 68o no loss of business time, he can not recover for any period there- after, although he may subsequently suffer a total loss of time by reason of his injuries. The loss of business time must be continuous. If, for example, on the day of , his in- juries, if any, became so much improved that he suffered no loss of business time therefrom, he could not recover for any period thereafter.^* (2) The court instructs the jury that while there must be an immediate loss of business time, and a continuing loss of business time, and a total loss of business time, there need not be a total loss of business time which must begin at the time the bodily injuries were first sustained, and continue total for the period of time for which the indemnity is sought.'" § 611. Fidelity and casualty insurance. — (1) The court in- structs the jury that the plaintiff was not required to give no- tice to the defendant until it had discovered that B. was guilty of culpable negligence in making the deposits when he knew the bank was insolvent, or had discovered facts indicating a probability of such fraud by D., and had discovered that it had suffered loss by reason thereof. The closing of the bank doors and the discovery by the plaintiff therefrom that a loss had been suffered by defendant was not necessarily conclusive that the plaintiff should at once have given notice to the defendant. You are to take into consideration all the circumstances and con- ditions then existing as known to the plaintiff, and are to deter- mine therefrom the time when the plaintiff discovered or had information of facts indicating that B. had probably been guilty of fraud or culpable negligence resulting in loss to the plaintiff. The plaintiff was not required to give the surety company notice upon discovery of facts that would merely raise a suspicion of fraud or culpable negligence on the part of B. It had the right to wait until it discovered facts that would reasonably do more than raise a mere suspicion. It had a right to delay giving no- tice until it discovered facts that would have justified a careful "Pacific Mut. Life Ins. Co. v. "Pacific Mut. Life Ins. Co. v. Branham, 34 Ind. App. 243, 70 N. E. Branham, 34 Ind. App. 243, 70 N. E. 174. 174. 68l INSURANCE. §6ll and prudent man in charging another with fraud or culpable negligence.'^ (2) The court instructs the jury that the words "immediate notice", as employed in the bond, are to be given a reasonable and practical construction, and are to be taken as requiring the plaintiif only to give notice as soon as was under all the cir- cumstances of the case reasonably practical." (3) The court instructs the jury that, by the terms of the policy sued on herein, if the pay-roll of the plaintiff exceeded the estimated sum of dollars at any time after the issuing of the said policy, then the said policy became void and of no effect and they should find for the defendant, unless they shall believe from the evidence that when the said policy was written the plaintiff explained to the agents of the defendant the way in which it did business with its agents, and that it was then agreed that when the plaintiff ascertained that its pay-roll ex- ceeded the sum of dollars in the usual course of business between the plaintiff and its agents, the plaintiff should pay and the defendant would accept an additional premium to cover said increase, and that the plaintiff did pay an additional pre- mium according to the terms of said agreement, if such there was, within a reasonable time after it ascertained in the usual course of business at the time, and its agents, the increase in the pay-roll. If such is the fact, then the law is for the plaintiff and the jury should so find.'* (4) The court instructs the jury that if there was no agree- ment between the plaintiff and the agent of defendant who made the contract sued on that the plaintiff should pay and the de- fendant would accept an additional premium when it was ascer- tained by plaintiff that its pay-roll exceeded the sum of dol- lars, the law is for the defendant, unless you shall believe from the evidence that when the plaintiff paid the additional '"National Surety Co. v. Western Pac. R. Co., 200 Fed. 675, 119 C. C. Pac. R. Co., 200 Fed. 675, 119 C. C. A 91. A. 91. ™ Fidelity &c. Co. v. Southern R. "National Surety Co. v. Western News Co., 31 Ky. L. 55, 101 S. W. 900. §6ll INSTRUCTIONS FORMS. 682 premium the defendant accepted it with a knowledge of all the facts affecting its Hability.'^ (5) The court instructs the jury that a person may insure his own life for the benefit of another, unless that contract is a guise, mistake, a contract for the purpose of defrauding. If it is a bona fide contract, — every person honest about it, — I have the right to insure my life for the benefit of somebody else. If that be so, the interest that the beneficiary could take in it he could assign that interest subject to the same limitation as provided for and conditioned on in that contract. That is what that contract means. If that be so, and you find that the plain- tiff here was the assignee of the beneficiary of that contract, and that contract was of the nature I have indicated that the assignment was made and properly made, and the risk contem- plated there, to wit, the death of C, occurred, then the trans- feree would have the same right to recover upon that contract that the transferor would have.^" (6) The court instructs the jury that it makes no difference whether or not the basket company ever paid out a dollar at all on this loss. If one of their men was injured, and their liability to pay that debt was fixed by final judgment, then the plaintiff is entitled to recover.^^ (7) The court instructs the jury that if a party have knowl- edge of facts when he made a contract, but for the moment when , he made it had forgotten the fact, — overlooked it, — ^that is not such a mistake as the law will relieve him against. * * * There- fore, if these parties ever knew a defense which they set up in their answer, to wit, the insolvency of this basket and veneer company, but temporarily forgot it, and made the contract, they are, notwithstanding, bound by it.^^ "Fidelity &c. Co. v. Southern R. N. Car. 302, 27 S. E. 38; Dargan v. News Co., 31 Ky. L. SS, 101 S. W. Equitable Life Assur. Soc, 71 S. Car. 900. 356, 51 S. E. 125. *• Crosswell v. Connecticut Indem- ^ Pickett v. Fidelity &c. Co., 60 S. nity Assn., 51 S. Car. 103, 28 S. E. Car. 477, 38 S. E. 160. 200. See also Giddings v. Phoenix "' Pickett v. Fidelity &c. Co., 60 S. Ins. Co., 90 Mo. 272, 2 S. W. 139; Car. 477, 38 S. E. 160. Nelson v. Atlanta Home Ins. Co., 120 683 INSURANCE. § 612 § 612. Marine insurance. — (1) The court instructs the jury that the defendant, in and by its poUcy of insurance offered in evidence, insured the plaintiff against "unavoidable dangers of rivers, of fires, and of jettisons" ; and the court further instructs you that there is no evidence before you of the loss of plain- tiff's barge by reason of fires or of jettisons; and the court further instructs you that the "unavoidable dangers of rivers," mentioned in the policy, are dangers vs^hich arise from the ex- traordinary action of the wind and waves, and from inevitable accidents directly connected with the navigation of rivers ; and unless you find from the evidence that the loss of the barge was caused by some one of the "unavoidable dangers of rivers", you will find a verdict for the defendant.^' (2) The court instructs the jury that under the policy ofifered in evidence in this case, plaintiff warranted that at all times dur- ing the continuance of the said policy, said barge No. , men- tioned in the plaintiff's petition in this case, was tight and sound, and if the jury find from the evidence that said barge was not tight and sound, and that while in such condition she sank at about the date alleged in the petition, then the court instructs the jury that, under the contract between the parties in this case, said barge was not seaworthy, and that plaintiff can not recover.^* (3) The court instructs the jury that the words "seaworthy" and "seaworthiness" and "tight and sound", as used in these in- structions given by the court, mean the sufficiency of the barge mentioned in the petition, in materials, construction, equipment, and outfit, for the trade or service in which it was employed.*^ ^ Paddock-Hawley Iron Co. v. *° Paddock- Hawley Iron Co. v. Providence-Washington Ins. Co., 118 Providence-Washington Ins. Co., 118 Mo. App. 85, 93 S. W. 358. Mo. App. 85, 93 S. W. 358. ** Paddock-Hawley Iron Co. v. Providence- Washington Ins. Co., 118 Mo. App. 85, 93 S. W. 358. CHAPTER LXIV. LANDLORD AND TENANT. Section Section 613. Execution of lease. 619. Sale of leased premises by land- 614. Farm leases. lord. 615. Assignment of lease. 620. Effect of destruction of leased 616. Repairs on leased premises. premises. 617. Payment of rental in services. 621. Termination of lease. 618. Eviction from premises. § 613. Execution of lease. — The court instructs the jury that if you find from the evidence that the Company ex- ecuted the lease offered in evidence in duphcate, and delivered same into the possession of defendant, and that thereafter the defendant returned said copies of the lease to the Com- pany with corrections and interlineations therein, and that there- after the Company redelivered said copies of the lease as corrected to defendant as and for a lease of the premises, and that defendant accepted the copies as such, and that rent was paid and accepted with the understanding by both parties that the lease was in full force and effect, then the defendant was entitled to retain possession, and you should find for the de- fendant.^ § 614. Farm leases. — (1) The court instructs the jury that if they believe from the evidence that plaintiff rented a portion of the land covered by the contract to B. D., the defendant had the right to refuse to cultivate or pay rent on the balance of the land.^ ' Ver Steeg v. Becker-Moore Paint erick v. Daniels, 74 Conn. 710, 52 Atl. Co., 106 Mo. App. 257, 80 S. W. 346. 414; Hofmann v. Cockerill, 112 Iowa = Anderson v. Winton, 136 Ala. 422, 141, 83 N. W. 898; Prosser v. Pretzel, 34 So. 962. For instructions in ac- 8 Kans. App. 856, 55 Pac. 854; Jones tions for rent, see Benedict v. Ever- v. McLeod, 103 Mass. 58; Stevens v. ard, 73 Conn. 157, 46 Atl. 870; Fred- Beardsley, 134 Mich. 506, 96 N. W. 684 685 LANDLORD AND TENANT. §6l7 (2) The court instructs the jury that if you find that it was understood between the parties that this milk should not be divided upon the farm from day to day, as it was milked, but should be divided by selling it, and the proceeds of it divided, then that should control. If it was so understood that it should be divided in this way between the parties, and that no compensa- tion should be allowed to W. for it, because it was understood between them that his obligation to do the work included this arrangement, then he should not be allowed for it ; but if it was not so understood, and this was an arrangement made after- wards, whereby W., at the request of R., agreed to deliver the milk for him, then he should be allowed what it would be rea- sonably worth to do that.^ § 615. Assignment of lease. — The court instructs the jury that in order to make H. liable as assignee of the leasehold in- terest, there must have been a recognition of H. by A. as his tenant. If there was no relation of landlord and tenant existing between A. and H. then H. would not be liable.* § 616. Repairs on leased premises. — ^The court instructs the jury that before the defendant would be entitled to claim any credit for repairs in this action, it would be necessary for him to show by a preponderance of the evidence : First, that said repairs were necessary ; and, second, that he had informed plain- tiff or her agent of same, and requested him to make them, and that after such request plaintiff had failed to or neglected to make same, or that said repairs were made at the instance of the defendant and afterwards reported to the plaintiff or her agent, and that said agent ratified the same and agreed to pay therefor.' § 617. Payment of rental in services. — The court instructs the jury that they must find for the plaintiff the reasonable rental value of the house and premises for the time they believe 571; Hartz v. Eddy, 140 Mich. 479, 'Hamilton v. House, 6 Ala. App. 103 N. W. 852. 86, 60 So. 429. = Williamsv. Rogers, 110 Mich. 418, "Waldrip v. Grisham (Ark.), 164 68 N. W. 240. S. W. 1133. § 6l8 INSTRUCTIONS FORMS. '686 from the evidence that defendant occupied the same, not exceed- ing $ per annum, unless the jury should believe from the evidence that the plaintiff and the defendant entered into a con- tract by which the defendant was to pay the taxes and insurance on said property, and board the plaintiff and keep her horse, which was to be in full payment of the rent of said property; and, if the jury should believe the latter view expressed herein, they can not find anything for plaintiff for rent for said house and premises.® § 618. Eviction from premises. — (1) The court instructs the jury that physical and forcible expulsion is not necessary to con- stitute an eviction ; but any act on the part of the landlord which deprives the tenant of the beneficial enjoyment of the premises amounts to an eviction. This is so, if the act was done in viola- tion of the rights of the tenant.'' (2) The court instructs the jury that if the landlord before the expiration of the lease or tenancy, against the consent of the tenant, evicts or expels the tenant from all or any substantial part of the premises leased, the tenant is discharged from the payment of any rent from the time of such eviction, and is not bound to payment for what he continues to occupy after such eviction. If there is no agreement to the contrary, the tenant is entitled to the possession of the premises without interruption or molestation by the landlord; and, if the jury believe, etc., that defendant was tenant from year to year, and entitled to the possession of the premises in question from , 19 — , to , 19 — , and that against defendant's consent, and in the absence of any understanding or agreement permitting it, the railroad company wrongfully took possession of part of said lots for their railroad track, and continued to hold, and use the same until , 19 — , and evicted defendant therefrom, then such an eviction by the railroad company works an extinguishment of all rent for said premises from the time of its occurrence, ° Anderson v. Baird, 19 Ky. L. 444, detainer, see Fallon v. Murray, 4 Ind. 40 S. W. 923. T. 86, 64 S. W. 753; Kessel v. Mayer, 'Price V. Pittsburg &c. R. Co., 34 118 III. App. 267. 111. 13. For instructions on unlawful 687 LANDLORD AND TENANT. §619 notwithstanding defendant continued to occupy the residue of said lots until , 19 — . But if it was the understanding that the railroad might put its track across the lots in the event of its electing to do so on completing its purchase, and defendant held under that understanding, then putting down the track after such purchase would not amount to an eviction.* (3) The court instructs the jury that a physical eviction is not necessary to exonerate the tenant from payment of rent, but if the landlord's acts are of so pronounced and offensive a character as to create a nuisance, which prevents the reasonable use of the premises by the tenant, such acts will justify an abandonment of the premises and will defeat an action for sub- sequent rent.* (4) The court instructs the jury that if they find from the evidence that the vibration or shaking of the building in which defendant's studio was situated, which were caused by the con- duct of the automobile company, were such that the defendant was thereby prevented from properly carrying on her work as a glass painter, and her paintings thereby became liable to be damaged or destroyed, and said premises thereby made unfit for the purpose of an art studio, so that she had to abandon the same, then the defendant as lessee, was evicted from the premises.^* § 619. Sale of leased premises by landlord. — ^The court in- structs the jury that if they believe, from the evidence, that one G. S. I. owned the premises in question, and executed a lease therefor to the plaintiff for one year, with the privilege of re- newing for one or more years, provided said I. did not sell the premises before the day of , 19 — , and if they further believe from the evidence, that the premises were sold by said I. before the day of , 19 — , then they should find for the defendants. ^"^ = Price V. Pittsburg &c. R. Co., 34 "Wade v. Herndl, 127 Wis. S44, 111. 13. 107 N. W. 4, 5 L. R. A. (N. S.) 8SS. " Sully V. Schmitt, 147 N. Y. 248, 41 " Sutherland v. Goodnow, 108 111. N. E.,514, 49 Am. St. 659. 528, 48 Am. Rep. 560. § 620 INSTRUCTIONS FORMS. 688 § 620. Effect of destruction of leased premises. — (1) The court instructs the jury that if the defendants used the building as persons of ordinary care and prudence would have done, looking to its character, size, apparent construction, and strength, and that it fell down in consequence of some defect in its struc- ture, or on account of a want of proper thickness of the wall, or on account of the ordinary decay of the materials, and that all these matters were unknown to the defendants, and could not have been discovered by reasonable and ordinary diligence, the verdict should be for the defendants.^^ (2) The court instructs the jury that the burden of proof is upon the defendants to show that the building fell in conse- quence of ordinary wear and tear ; and that, unless they did show that the fall of the building was so caused, the verdict should be for the plaintiffs.^^ (3) The court instructs the jury that if the fall of the build- ing was attributed to alterations made in the building by the defendants in connection with the use thereafter made of it by them, the plaintiffs were entitled to recover.^* (4) The court instructs the jury that if the fall was due to the excessive quantity of goods stored in the building by the defendants, or to the manner in which they were stored, the plaintiffs were entitled to recover.^' §621. Termination of lease. — (1) The court instructs the jury that, as a matter of law, in order to constitute a sale of real estate within the meaning of the clause in the lease intro- duced in evidence by plaintiff, it is not necessary that a deed should actually be executed and delivered, but any written agree- ment by or under which a party may enforce the ' making and delivery of a deed of conveyance, and in pursuance of which a deed is subsequently executed and delivered, is, in the eyes of the law, a sale, within the meaning of said clause in said lease." "Machen v. Hooper, n Md. 342, ''Machen v. Hooper, Ti Md. 342, 21 Atl. a. 21 Atl. 67. "Machen v. Hooper, 11 Md. 342, "Sutherland v. Goodnow, 108 111. 21 Atl. 67. 528, 48 Am. Rep. 560. "Machen v. Hooper, Ti Md. 342, 21 Atl. 67. 689 LANDLORD AND TENANT. § 621 (2) The court instructs the jury that if you believe from the evidence that the defendant sought to terminate his tenancy before the expiration of his lease by substituting a third person, and that the defendant, on leaving the demised premises, ten- dered the rent due up to the time of leaving and also tendered the key of the premises, and that plaintiff declined to receive the key unless defendant would agree to make good the rent of the unoccupied premises until plaintiff should have an op- portunity of renting them, such conditional acceptance of the key did not have the effect of terminating the tenancy and the defendant remained liable under the lease until the termination thereof." " Nelson v. Thompson, 23 Minn. 508. 44 — Branson's Inst. CHAPTER LXV. MALICIOUS PROSECUTION. Section Section 622. Essentials of malicious prosecu- 626. Advice of attorneys. tion. 627. Effect of non-action by grand 623. Malice. jury. 624. Responsibility for acts of agents. 628. Elements of damages. 625. Probable cause. 629. Exemplary damages. § 622. Essentials of malicious prosecution. — (1) The court instructs the jury that a maHcious act is whatever is wrongfully, vexatiously, and purposely done, is in law maliciously done.^ (2) The court instructs the jury that the prosecution of a per- son criminally with any other motive than that of bringing a guilty person to justice is a malicious prosecution.^ (3) The court instructs the jury that the plaintiff, C, to re- cover, must prove that the prosecution by defendant, R., was prompted by malice, that it was without probable cause, and that she was not guilty of the crime with which the defendant, R., charged her. The plaintiff must prove her case by a preponder- ance of the evidence.^ (4) The court instructs the jury that there are three essen- tials which must concur before a malicious prosecution can be successfully maintained, and I ask your close attention to these three, that you may apply them as tests to the evidence in this case, and decide whether or not the plaintiff has made out his case. And upon all three the burden of proof is upon the plain- tiff to establish each of the three, and all three, by the preponder- ance of the evidence, — by the greater weight of the testimony, — ' Rutherford v. Dyer, 146 Ala. 665, ' Rulison v. Collins, S Ind. T. 282, 40 So. 974. 82 S. W. 748. = Rulison V. Collins, S Ind. T. 282, 82 S. W. 748. 690 691 MALICIOUS PROSECUTION. § 624 SO that the jury will be satisfied that each of the three has been proved: First, it must be affirmatively shown that the plaintiff was prosecuted through malicious motives; second, that the prosecution was without probable cause; and third, that the prosecution had ended, either by an acquittal or a judgment in the plaintiff's favor, before the commencement of the action for damages, or that the prosecution had been abandoned and the cause dismissed before the commencement of the action for dam- ages. You will bear in mind that the burden of proof is upon the plaintiff to establish these three requisites as facts.* §623. Malice. — (1) The court instructs the jury that, if they believe from the evidence in this case that there was not probable cause for the suing out of the prosecution against S. D., then the jury may infer malice from the want of probable cause on the part of the defendant.^ (2) The court instructs the jury that mere dislike or ill will toward one by another does not constitute malice in the legal sense. There must be some act done by defendant with intent to injure plaintiff, and such act must be wrongful, and must be done without legal justification or excuse ; and unless, etc.* (3) The court instructs the jury that malice may consist of any motive other than a desire to bring a guilty party to justice. A prosecution is malicious when actuated by hostile or vindictive motive, provided there is also a lack of probable cause, as is here- inafter explained. A prosecution instituted wilfully and pur- posely, to gain some advantage to the prosecutor, or through mere wantonness, or carelessness, if it be at the same time wrong and unlawful, within the knowledge of the actor, and without probable cause, is, in legal contemplation, malicious.'' § 624. Responsibility for acts of agents. — The court in- structs the jury that if you believe that the defendant, through its servant, wrongfully, vexatiously and purposely made the affi- * Baker v. Hornik, 57 S. Car. 213, 'Eggett v. Allen, 119 Wis. 625, 96 35 S. E. 524. N. W. 803. See also Merrell v. Dud- = Rutherford v. Dyer, 146 Ala. 665, ley, 139 N. Car. 57, 51 S. E. 777 ; San 40 So. 974. Antonio &c. R. Co. v. Griffin, 20 Tex. " Peck V. Chouteau, 91 Mo. 138, 3 Civ. App. 91, 48 S. W. 542. S. W. 577, 60 Am. Rep. 236. § 625 INSTRUCTIONS FORMS. 6g2 davit complained of and procured the issuance of the search warrant, and without probable cause for so doing, then you must find the defendant guilty, provided you find that H. was acting within the scope of his authority or was authorized by the rail- road so to act, or that the railroad company has since ratified his action.* (2) The court instructs the jury that the defendant in this cause, the Water-Supply Company, is not responsible for the acts of its agent, W. C. P., wilfully and intentionally done, and done beyond the range of his employment or duty, and with- out the command or authorization of the defendant.® §625. Probable cause. — (1) The court instructs the jury that, although the case against S. was dismissed in the city court, it does not necessarily follow that the prosecution was malicious, nor that it was instituted without probable cause for believing that plaintiff was guilty of disorderly conduct." (2) The court instructs the juiy that if you find from the evidence that the defendant knew the plaintiff well enough to recognize him by his voice and general appearance, notwith- standing the disguise used, and recognized the clothing worn as plaintiff's clothing, and that by reason of such facts and the other facts shown in evidence the defendant as a prudent and cautious man was warranted in the belief, and that he did so be- lieve, and that such facts constituted reasonable ground of suspi- cion, then you would be justified in finding that said prosecution was upon probable and reasonable cause. ^^ (3) The court instructs the jury as a matter of law that the commencement of a criminal prosecution by a defendant simply for the purpose of defeating the claims of a plaintiff in a civil action then pending would be an abuse of the process of the court, and would be conclusive evidence of malice on the part of the person commencing such proceeding, and in such case the ad- vice of counsel would be no protection. Whether in this case ' Gulsby V. Louisville &c. R. Co., " Sweeny v. Bienville Water Supply 167 Ala. 122, S2 So. 392. Co., 121 Ala. 454, 25 So. 575. " Sweeny v. Bienville Water Supply " Jenkins v. Gilligan, 131 Iowa 176, Co., 121 Ala. 454, 25 So. 575. 108 N. W. 237, 9 L. R. A. (N. S.) 1087. 693 MALICIOUS PROSECUTION. § 625 the proceedings were commenced against the plaintiff with a bona fide intention of prosecuting a supposed criminal offense, or merely for the purpose of aiding private interests, are questions to be determined by the jury from the evidence.^^ (4) The court instructs the jury that what is probable cause is not contingent upon the fact of the guilt of tlfe accused. The discharge of the respondent upon his examination is not of self conclusive evidence of want of probable cause. So in this case the plaintiff must do more than prove that L. is not guilty of this offense, and that he was discharged upon the examination ; and, if the plaintiff can not satisfy you by a fair preponderance of the evidence that P. acted without probable cause and with malice, then your verdict must be for the defendant upon that charge. That is all I need say to you. In order for the plaintiff to re- cover in this case, it is sufficient for him to satisfy you by a fair preponderance of evidence of the material facts in the case. In other words, the burden of the proof is upon the plaintiff, in order to recover, to satisfy you by a fair preponderance of evidence that the material facts upon which he relies in this case have been sustained by the evidence and are true.^^ (5) The court instructs the jury that if you shall find that the defendant had no malice — that is, hatred or ill will — against the plaintiff, and that he had just cause or excuse for making the accusation, but that he made the charges simply to recover the things which he supposed the plaintiff had taken, then your verdict must be for the defendant, so far as the charges of slan- der are concerned.^* (6) The court instructs the jury that the mere fact that the plaintiff was acquitted is not conclusive evidence of malice or want of probable cause, for there may have been probable cause "Indianapolis Trac. &c. Co. v. ceny, see Clark v. Brown, 116 Mass. Henby, 178 Ind. 239, 97 N. E. 313. S04; Butler v. News-Leader Co., 104 "Lansky v. Prettyman, 140 Mich. Va. 1, 51 S. E. 213; Hinchman v. 40, 103 N. W. 538. For similar in- Knight, 132 Mich. 532, 94 N. W. 1. structions, see Laing v. Mitten, 185 Justification and mitigation: Minter Mass. 233, 70 N. E. 128; Forbes v. v. Bradstreet Co., 174 Mo. 444, IZ S. Hagman, 75 Va. 168. W. 668; Upchurch v. Robertson, 127 " Moore v. Thompson, 92 Mich. N. Car. 127, Z1 S. E. 157. 498, 52 N, W. 1000. Charge of lar- § 625 INSTRUCTIONS FORMS. 694 when in fact plaintiff was not insane. The plaintiff may by his own acts or folly have placed himself in a position where a rea- sonable suspicion of insanity might be predicated against him.^' (7) The court instructs the jury that what you have to find here, before you can give a verdict for the plaintiff, is that this prosecution in the justice's court was without probable cause, and from that lack of probable cause you may find malice, and in that way you make this case out to be a malicious prosecution, and until you do that the plaintiff has no cause of action at all.^" (8) The court instructs the jury that the defense is complete if the action of the prosecutor (of the defendant) was not the result of malice (if he was not actuated by malice) ; and the question of probable cause does not depend on whether the ac- cused is guilty or innocent, but upon the belief of the prosecutor, and upon the grounds of that belief.^'' (9) The court instructs the jury that the state is bound to furnish a grand jury with probable cause before that jury can find a true bill against a man. It does not mean that they try the man and find him guilty, but they simply say that, if this evidence be true, — and only one side is heard, the state's side, — if this evi- dence be true, this man should be tried; upon these facts, he must be guilty, if they be true. That furnishes probable cause.^* (10) The court instructs the jury that probable cause has been defined to be such a state of facts in the minds of the prosecutor as would lead a man of ordinary caution and prudence to be- lieve or entertain an honest and strong suspicion that the person arrested is guilty. * * * Whether the facts known to the defendant were such as to lead him, as a man of ordinary cau- tion and prudence, to believe and entertain an honest and strong suspicion that plaintiff was guilty of either charge is submitted to the jury, to be decided as a question of fact.^° "Hiersche v. Scott, 1 Nebr. (Un- "Baker v. Hornik, 57 S. Car. 213, of.) 48, 95 N. W. 494. 35 S. E. 524. "Langley v. East River Gas Co., "Baker v. Hornik, 57 S. Car. 213, 41 App. Div. 470, 58 N. Y. S. 992. 35 S. E. 524. See also Martin v. Corscadden, 34 ^Eggett v. Allen, 119 Wis. 625, 96 Mont. 308, 86 Pac. 33; Hiersche v. N. W. 803. For other instructions Scott, 1 Nebr. (Unof.) 48, 95 N. W. on probable cause, see Scrivani v. 494; Forbes v.Hagman, 75 Va. 168. Dondero, 128 Cal. 31, 60 Pac. 463; 695 MALICIOUS PROSECUTION. § 626 (11) The court instructs the jury that mere belief of the de- fendant in plaintiff's guilt, however strong, sincere, and honest, will not constitute probable cause, unless founded on circum- stances sufficient in reason to warrant it.^" §626. Advice of attorneys. — (1) The court instructs the jury that before the defendant can shield himself by the advice of counsel, it must appear from the evidence that he made, in good faith, a full, fair, and honest statement of all the material cir- cumstances bearing upon the supposed guilt of the plaintiff K. S. ,W., which were then within the knowledge of defendant, to a respectable attorney in good standing, and that the defendant in good faith acted upon the advice of said attorney in instituting and carrying on the prosecution against plaintiff.^^ (2) The court instructs the jury that if you find that the de- fendant, in good faith, consulted an attorney and made a full and/ fait" statement of his case to him and was by him advised to prosecute his complaint for surety of the peace, this is a strong circumstance to repel the presumption of malice and want of probable cause.^^ (3) The court instructs the jury that I leave it for you to say from all the evidence in the case whether the defendant acted in good faith in consulting his own attorney employed by him in the civil action, and, if you find that he did not act in good faith in consulting with said attorney, then he can not plead such ad- vice as a defense to said action.^^ Holliday v. Holliday, 123 Cal. 26, 55 view of the defendant's own testi- Pac. 703; Forbes v. Hagman, 75 Va. mony, by which it appears that the ^68. person whom he consulted was 'an at- "Eggett V. Allen, 119 Wis. 625, 96 torney at law having his office at the N. W. 803. Battle Ground.' It is reasonable to '"Williams v, Casebeer, 126 Cal. infer that he was a practising attor- 77, 58 Pac. 380. See also Baker v. ney from the fact that he had an of- Hornik, 57 S. Car. 213, 35 S. E. 524. fice. The charge in this respect is "'The instruction given in this case clearly correct in the abstract and as contained the words, "consulted a applied to the evidence." Burgett v. practising attorney," instead of "con- Burgett, 43 Ind. 78. suited atj attorney." The higher court *" Merchant v. Pielke, 10 N. Dak. said : "We are of opinion that the 48, 84 N. W. 574. charge was entirely appropriate, in § 626 INSTRUCTIONS FORMS. 696 (4) The court instructs the jury that he is allowed to show that he communicated to his counsel, his lawyer, all the facts or what seemed to him to be the facts, bearing upon the guilt or in- nocence of the accused, where were known to him, or which he might reasonably have information of, and to show also that acting upon his lawyer's advice, he brought the prosecution, and that he acted solely on the advice of his counsel and from no im- proper motives. That would be a complete defense and would justify the finding for the defendants in a proper case. You are to say whether this is such a case or not. The testimony is before you, and you are to say what weight it deserves. The whole advice of counsel is evidence intended to rebut the pre- sumption or imputation of malice ; and where malice is expressly proved, the advice of one's lawyer will not free a defendant from liability; that is, where malice is expressly proved.^* ( 5 ) The court instructs the jury that if you should find that, before beginning any criminal prosecution, defendant's agent S. C. B. consulted in good faith J. M. H., in his capacity as an at- torney and counselor, giving to said H. a full, true, and complete statement of all material facts within his knowledge, and you also find there were no other material facts relative to the matter which the defendant might have ascertained by the exercise of reasonable diligence ; and if you further find that, after consider- ing all the facts so submitted, H. advised defendant's agent that the offense of embezzlement had been committed by plaintiff, J. G. ; and if you further find that this advice of counsel was warranted by the law governing and defining embezzlement (as hereafter to be given in charge) ; and if you further find that this advice was accepted and acted on in good faith, and under an honest belief of the plaintiff's guilt, — such advice, thus sought and acted upon, would be sufficient evidence of probable cause so far as the insurance company is concerned; and, in the case just supposed, you should find in its favor. Again, if H., after his employment as attorney, did, as the authorized representative of the company in that matter, submit to the attorney general for the county of D., in good faith, a full, true, and complete statement of all material facts within the knowledge of the ^ Baker v. Hornik, 57 S. Car. 213, 35 S. E. 524. 697 MALICIOUS PROSECUTION. § 626 company's agents and himself; and if you find tliere were no other material facts relating to the matter which he or the de- fendant company might have ascertained by the exercise of rea- sonable diligence ; and if you further find that, after considering all the facts so submitted, the attorney general advised the in- dictment of plaintiff upon the charge of embezzlement, and that this advice was warranted by the law governing and defining embezzlement (hereafter to be given in charge) ; if you find that the advice was accepted and acted upon by both defendants in good faith, and under an honest belief of plaintiff's guilt, — this would be sufficient evidence of probable cause; and, in the case just supposed, you should find for both defendants.^^ (6) The court instructs the jury that the burden was upon the defendant to prove that he sought counsel with an honest purpose to be informed as to the law, and that he was in good faith guided by such advice in causing the arrest of the plain- tiff, and that whether or not the defendant did, before insti- tuting the criminal proceedings, make a full, correct, and honest disclosure to his attorney of all the material facts bearing upon the guilt of the plaintiff of which he had knowledge, and whether, in commencing such proceedings, the defendant was acting in good faith upon the advice of his counsel, are questions of fact, to be determined by the jury from all the evidence and circumstances proved in the case; and if the jury believe, from the evidence, that the defendant did not make a full, correct, and honest disclosure of all such facts to his counsel, but that he in- stituted the criminal prosecution from a fixed determination of his own, rather than from the opinion of counsel, then such ad- vice can avail nothing in this suit.^° (7) The court instructs the jury that there is evidence tend- ing to show that F. acted as attorney for the defendant in the proceedings before B. Of course, the defendant is liable if he either commenced these prosecutions himself or authorized and directed his attorney to do so, if in other respects the cause of '^ Graham v. Fidelity Mut. Life prosecution, see Williams v. Casebeer, Assn, 98 Tenn. 48, 37 S. W. 99S. 126 Cal. 77, 58 Pac. 380 ; Baker v. ""Jones V. Morris, 97 Va. 43, 33 .S Hornik, 57 S. Car. 213, 35 S. E. 524. E. 377. Acting on advice in bringing § 627 INSTRUCTIONS FORMS. 698 action stated in the complaint is proved. * * * Now, even if the signature to this complaint is not defendant's, yet if the defendant was there counseling and advising the prosecution of the plaintiff, and taking part in maintaining the prosecution, he would be just as liable as if he signed the complaint. However, you may consider the question whether he signed the complaint, and what he supposed as to the nature of the proceedings, whether they were tort or criminal in their nature, as bearing on the question of maHce.^' § 627. Effect of non-action by grand jury. — The court in- structs the jury that the fact that the grand jury ignored the information and that defendant was acquitted before the jus- tice of the peace is no evidence of want of probable cause, but the testimony on this point is only admitted to show that the prosecutions in question have ended.^' § 628. Elements of damages. — The court instructs the jury that the elements of damage to be considered by the jury, if you find for the plaintiff, are the expenses plaintiff was put to in the prosecution to protect herself, including reasonable attorney's fees, her loss of time, her deprivation of liberty, the loss of so- ciety of her family, injury to her good name, her personal morti- fication at being placed under arrest, her wounded pride, her mental suffering, and the smart and injury of the malicious acts and acts of oppression of the defendant, if you find any such were committed. These are what are known in law as direct damages, actual damages.^^ " Eggett V. Allen, 119 Wis. 62S, 96 one requested. The higher court held N. W. 803. that the instruction given was quite ^The defendant in this case re- as favorable to the defendant as the quested an instruction to the effect one asked and that therefore there that the ignoring of the indictment was no error in refusing the re- by the grand jury can not be consid- quested instruction. Noble v. White, ered in evidence as tending to show 103 Iowa 352, 72 N. W. 556. absence of probable cause or as show- " Merchant v. Pielke, 10 N. Dak. ing malice on the part of the defend- 48, 84 N. W. S74. See also Connelly ant. The foregoing instruction was v. White, 122 Iowa 391, 98 N. W. substituted by the trial court for the 144. 699 MALICIOUS PROSECUTION. § 629 § 629. Exemplary damages. — The court instructs the jury that if you find that the defendant, without probable cause, and maliciously, caused the arrest of the plaintiff, you are authorized to go further, and award punitive damages in such sum as will be a warning to defendant and all other persons not to commit similar wrongs, and consequently such damages, to be effectual, must have some relation to the financial ability of the defendant. It is on this theory that evidence as to defendant's financial ability has been admitted.^" ™Eggett V. Allen, 119 Wis. 625, 96 N. W. 803. CHAPTER LXVI. MASTER AND SERVANT. Section 630. Continuance of relation after close of work hours. 631. Implied contract of employment. 632. Breach of contract of employ- ment. 633. Discharge of employe. 634. Duty of discharged employe to seek other employment. 635. Damages for discharge. 636. Degree of care to be exercised for safety of employes. 637. Care in the movement of en- gines and cars. 638. Inevitable accident. 639. Presumptions of negligence from happening of accident. 640. Duty of care toward employes of tender years. 641. Presumption of competency of infant employe. 642. Methods of work — Work about railroad trains. 643. Safety of appliances and places of work. 644. Safety of appliances and places of work — Presumption of per- formance of duty. 645. Safety of appliances and places of work — Knowledge of de- fect by master. 646. Safety of appliances and places of work — Duty of inspection. 647. Safety of appliances and places of work — Hidden defects. 648. Safety of appliances and places of work — Duty to safeguard machinery. Section 649. Safety of appliances and places of work — Insufficient lighting. 650. Safety of appliances and places of work — Passageways. 651. Safety of appliances and places of work — Unruly work ani- mals. 652. Safety of appliances and places of work — Railroad employ- ment. 653. Duty to instruct and warn youth- ful and inexperienced work- men. 654. Duty to sound warnings to rail- road employes at work on track. 655. Rules for government of em- ployes. 656. Obedience to commands of su- perior. 657. Assumption of risk. 658. Assumption of risk — Master's negligence. 659. Assumption of risk — Obvious dangers. 660. Assumption of risk — Servant's knowledge of unsafe condi- tions. 661. Assumption of risk — Reliance on master's assurance "of safety. 662. Assumption of risk — Work out- side line of employment. 663. Fellow-servant doctrine. 664. Fellow-servant doctrine — Duty to employ capable and sufficient fellow servants. 700 701 MASTER AND SERVANT. § 63O 665. Fellow-servant doctrine— V i c e 671. Contributory negligence— C a r e principals. in escaping impending danger. 666. Fellow-servant doctrine— R u 1 e 672. Contributory negligence— C are applicable where injury re- to observe dangers. ceived in a sister state. 673. Contributory negligence — E n - 667. Contributory negligence. countering obvious dangers. 668. Contributory negligence— Disre- 674. Contributory negligence— D i s- gard of warnings. covered peril. 669. Contributory negligence— R e a- 675. Contributory negligence — R a i 1- sonable diligence to be exer- road employes. cised by employe. 676. Conformity of proof to plead- 670. Contributory negligence — Pre- ings. sumption of the exercise of 677. Negligence a question of fact, due care. 678. Burden of proof. § 630. Continuance of relation after close of work hours. — (i) The court instructs the jury that the plaintiff was entitled to a reasonable time, after quitting his work for the defendant Company, in which to obtain his pay for his services, or to obtain his time check and identification paper necessary to en- able him to draw his pay, and which would entitle him to ride on defendant's 'train in leaving , the place where employed, and in which to leave said place. What would be such reasonable time is a question to be determined by the jury from all the facts and circumstances proven on the trial. He was not required to expose himself to unnecessary and unreasonable danger in at- tempting to find or to get on to a train for the purpose of leaving ; nor was he required to take a train which would land him at the place where he was intending to go at a time and under such circumstances as would expose him to unnecessary and un- reasonable hazards or dangers.^ (2) The court instructs the jury that in determining whether or not plaintiff remained at more than a reasonable length of time after he quit work for the defendant, you may take into consideration whether or not any objection was made by the employes of the railroad company in charge of the grounds and premises of the defendant company at to his remaining there, and whether plaintiff, in remaining there the length of time he did, acted in good faith, and without any reason to suppose any objection "would be made to his so remaining.^ 'Hern v. Southern Pac. Co., 29 'Hern v. Southern Pac. Co., 29 Utah 127, 81 Pac. 902. Utah 127, 81 Pac. 902. § 631 INSTRUCTIONS FORMS. 702 § 631. Implied contract of employment. — The court in- structs the jury that if, after the other men were discharged from the mine, the plaintiff continued in possession, believing he was still employed by the defendant, and you find that defendant consulted the plaintiff with reference to future development of the property, and called upon him during this time to perform any duties, then you would have a right to take into consideration these things done by the defendant in determining whether the plaintiff is entitled to recover or not; that is, you would have a right to consider that they had consulted him while he was, with their knowledge, in possession of the property, if you find these to be facts.^ § 632. Breach of contract of employment. — (1) The court instructs the jury that in this case, there is no writing showing any express contract, and you heard the witnesses on the stand whether there was any verbal expressed contract. Has any wit- ness sworn that the express contract was that they should be al- ways governed by the law of , whether they worked in , or whether they worked in ? If so, then it is a contract. If not, then I leave it to the jury to say what the con- tract of the parties were.* (2) The court instructs the jury that if the demands made upon the plaintiff by the general manager were reasonable, and within the scope of his duties as manager, the plaintiff had no right to give up his employment, and there can be no recovery in this case.'^ § 633. Discharge of employe. — (1) The court instructs the jury that if they shall find from the greater weight of the evi- dence that it was necessary for a superintendent of the defend- ant's mill, to successfully operate the same, to understand card- ing, spinning, and weaving in order to intelligently direct those ' Mee -V. Bowden Gold Min. Co., 47 " Lewis v. Moorhead, 201 Pa. 24S, Ore. 143, 81 Pac. 980. SO Atl. 960. Wrongful discharge, see * Caldwell v. Seaboard Air Line R. Gillespie v. Ashford, 125 Iowa 729, Co., 73 S. Car. 443, S3 S. E. 746. See 101 N. W. 649; Johnson v. Crookston Harrill v. South Carolina &c. R. Co., Lumber Co., 92 Minn. 393, 100 N. W. 13S N. Car. 601, 47 S. E. 730. 22S. 703 MASTER AND SERVANT. § 634 under him in those departments, and should further find from the evidence that the plaintiff did not sufficiently understand carding and spinning to enable him to direct those in charge of those departments, and that he did not intelligently direct and instruct those placed in charge of the carding and spinning on account of a lack of skill and knowledge on his part, then I charge you that this was a violation of the contract on the part of the plaintiff, and the defendants. had the right to discharge him from their employment, and the plaintiff is entitled to recover nothing in this action.® (2) The court instructs the jury that the burden is upon the defendants to show that the plaintiff was not capable and effi- cient in the performance of his duties under the contract, and if the jury should find by a greater weight of the evidence that the plaintiff was not an expert in the departments of carding and spinning, yet if the jury further find by a greater weight of the evidence that the defendants had notice of this fact, at or be- fore the time they employed the plaintiff, that the plaintiff was not an expert carder and spinner, if such was the fact, would not excuse the defendants for discharging the plaintiff, and if the jury find that the plaintiff was discharged, and for this cause, this would be a breach of the contract on the part of the defend- ants, and you will answer the third issue "Yes".'' (3) The court instructs the jury that the fact of relieving the plaintiff from any or all of his duties does not amount to a dis- charge, and as the plaintiff had the right, under his contract, to refuse to perform any duties allotted to him by the general man- ager which were repugnant to his contract, the fact that such duties were allotted is not a justifiable cause for his leaving the employment.* § 634. Duty of discharged employe to seek other employ- ment. — The court instructs the jury that if you find that ' Eubanks v. Alspaugh, 139 N. Car. SO Atl. 960. For other instructions 520, 52 S. E. 207. in actions for wrongful discharge, see ' Eubanks v. Alspaugh, 139 N. Car. Gillespie v. Ashf ord, 125 Iowa 729, 520, 52 S. E. 207. See also Gillespie 101 N. W. 649; Johnson v. Crookston V. Ashford, 125 Iowa 729, 101 N. W. Lumber Co., 92 Minn. 393, 100 N. W. 649. 225. 'Lewis V. Moorhead, 201 Pa. 245, § 635 INSTRUCTIONS FORMS. 704 plaintiff was discharged from his said employment, consider the second matter already indicated. That matter is this : After plaintiff's discharge, if discharged, did plaintiff use reasonable diligence to secure employment at such place? The burden is upon plaintiff to show that he did. If, then, upon considering this matter, you find and believe from the evidence that plaintiff did use reasonable diligence to secure employment, and failed, then you may allow him on account of this against defendants $ for each day that he remains at said after said dis- charge and failed to find employment. You will observe that there will remain some time from the time plaintiff left to go to , to the end of said months, to wit, , . Now, as to that time, if you find and believe from the evidence that no employment could then have been had by the use of rea- sonable diligence at said by plaintiff up to said , , then you may allow him on account of such time the sum of $ per day for each day thereof. The total amount, if any- thing, allowed by you for plaintiff, shall not exceed the sum of — - — ■ days, at dollars per day, with interest on the amount so allowed by you, if anything." § 635. Damages for discharge. — The court instructs the jury that there has been testimony introduced in this case by the defendant to the effect that he asked the plaintiff to go back to work and complete his contract. If defendant has shown you by the evidence he did so ask the plaintiff to go back to work, this fact, if it be a fact, may be considered by you in determining the amount of damages due plaintiff, if any, for loss of time; but you are instructed, if you have found that plaintiff was dis- charged by the defendant, that plaintiff was not under any legal obligation to again enter the employ of the defendant, and that this testimony can only be considered by you with reference to the claim of damages for loss of time.^" § 636. Degree of care to be exercised for safety of em- ployes. — (1) The court instructs the jury that, to entitle the » Gillespie v. Ashford, 12S Iowa 729, " Rottlesberger v. Hanley, 15S Iowa 101 N. W. 649. 638, 136 N. W. 776. 705 MASTER AND SERVANT. ^6;^'/ plaintiflf to a recovery in this action, the jury must find from a preponderance of the evidence that the injury complained of was caused by the neghgence or by lack of ordinary care by the de- fendant or its servants and employes and that the said (name of person killed) did not directly contribute to the said accident or injuries which resulted in his death by any negli- gence or by want of prudence or by his failure to exercise or- dinary care for his own personal safety when the injury was sustained. If you find from the evidence in the case that the said (name of person killed) failed to exercise ordinary care for his safety in attempting to put the belt on the pulley at the time and in the manner in which he did, and but for this con- curring and co-operating negligent act on his part, if you find such act were negligent, and without such negligent act his in- jury would not have been sustained, then your verdict should be for the defendant, and this should be your verdict, notwithstand- ing you ihay also believe that the defendant lumber company was guilty of the negligence complained of as set out in plaintiff's complaint." (2) The court instructs the jury that the measure of care which should have been taken by the defendant company to avoid a responsibility of the injury to the said plaintiff is that which a person of ordinary care, prudence and caution would use if his own interests were to be affected, or the whole of the risk were his own. It is such care as a person of ordinary prudence would exercise under the circumstances surrounding the injury.^^ §637. Care in the movement of engines and cars. — (1) The court instructs the jury that it was the duty of the defend- ant's switching crew to exercise ordinary care in so doing their work as to avoid injuring the plaintiff while running his engine upon the defendant's track, and if the jury beheve, from the evi- dence, the engine which struck and collided with plaintiff's en- gine at the crossing was not managed and controlled with or- dinary care by the defendant's crew in charge of the same, and the plaintiff's injury was the direct result of the negligence of "Thompson v. Southern Lumber "McVey v. St. Clair, 49 W. Va. Co., 104 Ark. 196, 148 S. W. 537. 412, 38 S. E. 648. 45 — Branson's Inst. § 637 INSTRUCTIONS FORMS. 706 such crew in managing and controlling said colliding engine while he was in the exercise of ordinary care for his own safety, the defendant is liable, and plaintiff is entitled to a verdict/^ (2) The court instructs the jury that if they shall believe from the evidence that the agents or servants of the defendant, the Company, by negligence on their part caused the cars of the defendant company under their control to be backed against the car under which the plaintiff's intestate was working, and that be reason of such negligence (if any there was) on the part of defendant's said agents or servants the plaintiff's intestate lost his life, then the law is for the plaintiff, and the jury shall so find, unless the jury shall believe from the evidence that said R., by negligence on his part, so far contributed to his injury that, but for said negligence (if any there was) on his part, he would not have been injured.^* (3) The court instructs the jury that if you believe and find from the evidence that on or about the day of , in the year ■ ■, plaintiff was required in the course of his employment to go between the cars mentioned in evidence in the yards of the defendant for the purpose of uncoupling the same, and while between said cars and in the act of uncoupling the same, and while said cars were in motion, the witness F. carelessly and neg- ligently drew the coupling pin connecting said cars, allowing said cars to part, thus causing B., the plaintiff, to fall upon the track between said cars ; that said F. at the time knew, or by the exercise of ordinary care and caution would have known, that plaintiff was in a position of peril between said cars in the act of endeavoring to uncouple the same; that on account thereof the wheels of said cars were caused to run upon and over the body of plaintiff, mashing and crushing his leg — then your verdict must be for the plaintiff, unless you further believe and find from the evidence that the plaintiff was guilty of contributory negligence or that he assumed the risk of being so injured, as defined by other instructions.^^ '" St. Louis Nat. Stockyards v. God- Sydnor, 119 Ky. 18, 26 Ky. L. 951, frey, 198 111. 288, 65 N. E. 90. 82 S. W. 989, 68 L. R. A. 183. " Kentucky &c. Bridge & R. Co. v. " Brady v. Kansas City &c. R. Co., 206 Mo. 509, 102 S. W. 978. 707 MASTER AND SERVANT. § 64O § 638. Inevitable accident. — The court instructs the jury that if the plaintiff's injuries were the result of a pure accident, such as could not ordinarily be anticipated, and not the result of the negligence of either the plaintiff or the defendant, then the plaintiff can not recover. He can not recover at all unless his in- juries were caused by the negligence of the defendant company or its employes.^° § 639. Presumptions of negligence from happening of acci- dent. — (1) The court instructs the jury that, as between em- ployer and employe, between master and servant, as in this case, negligence on the part of the former is not proven, or to be in- ferred, simply from the existence or occurrence of the accident which causes the injury complained of.^' (2) The court instructs the jury that the fact that the plain- tiff was hurt by being thrown from a car on defendant's railroad is not evidence of negligence, and does not entitle him to recover in this suit." (3) The court instructs the jury that the fact that the de- ceased was injured under the cars in the line of his duty raises no presumption that the railway company was negligent in any of the respects claimed.^* § 640. Duty of care toward employes of tender years. — ( 1 ) The court instructs the jury that it is the duty of a master who knowingly employs a youthful and inexperienced servant and ■ subjects him to the control of another servant, to see that he is not employed in a more dangerous position than that for which he was employed, and to give him such warning of his danger as his youth or inexperience demands.^" (2) The court instructs the jury that if you believe from the evidence that, after the said J. W. E. was employed by the de- fendant, this fact became known to his father, the plaintiff E. A. "Caldwell v. Seaboard Air Line R. "Redus v. Milner Coal & R. Co., Co., 73 S. Car. 443, S3 S. E. 746. 148 Ala. 66S, 41 So. 634. " Union Pac. R. Co. v. Daniels, 152 " Latremouille v. Bennington &c. R. U. S. 684, 14 Sup. Ct. 756, 38 L. ed. Co., 63 Vt. 336, 22 Atl. 656. 597. ^Alabama Steel & Wire Co. v. Wrenn, 136 Ala. 475, 34 So. 970. § 641 INSTRUCTIONS FORMS. 708 E., and that said E. A. E. had full knowledge of the fact that said J. W. E. did not have sufficient judgment and knowledge to understand and appreciate the extent of the danger, if any, of his employment, and did not have the experience and knowledge of the duties thereof so as to care for himself as an adult of ordi- nary prudence would do, and had not acquired such knowledge, discretion, and experience since his employment from some source, and that thereafter the said E. A. E. acquiesced in the continuance of J. W. E. in said employment, then the plaintiff E. A. E. can not recover in this case, and in such event you will find for the defendant as against the said E. A. E.^^ § 641. Presumption of competency of infant employe. — The court instructs the jury that the defendant company had a right to assume that the plaintiff was possessed of the usual facul- ties ordinarily developed in a boy of his age and size; in other words, that he was a person of common sense for one of his years and that he would exercise such care to avoid dangers which were visible and which he knew or ought to have known existed, as might be reasonably expected of one of his years and capacity.^" § 642. Methods of work — Work about railroad trains. — ( I ) The court instructs the jury that if you find from the evidence that it was the duty of plaintiff to uncouple said cars, and that in making said uncoupling it was his duty to remain on the end of the log section of said train while it was being switched, and that, in order to do so, he had to gain his position on same before said train was permitted to move forward, and that, by reason of the logs extending over the platform, he had to remain upon the trailer, and that said forward movement was only to be made when either the conductor or engineer was signaled by plaintiff that he was ready, and you further find from the evidence that ^ Chicago &c. R. Co. v. Easley the law on the subject in a proper (Tex. Civ. App.), 149 S. W. 785. case." For similar instruction, see '' Although the trial court did not Blankavag v. Badger Box &c. Co., 136 err in refusing this instruction be- Wis. 380, 117 N. W. 852. cause inapplicable to the issues, yet the instruction is "a fair statement of 709 MASTER AND SERVANT. § 642 plaintiff did not give the signal for the train to move forward, but that the engineer moved forward without a signal to do so, and that, on account thereof, plaintiff, while in the exercise of due care, was thrown from said car and injured, your verdict will be for the plaintiff, unless you further find that plaintiff's in- jury was caused by his own negligence.^^ (2) The court instructs the jury that, while it was the duty of the engineer to keep a lookout, the law only requires him to keep such a lookout as is consistent with the performance of his duties in handling the engine. It was necessary for him to turn around and thus momentarily prevent him from keeping a lookout. The company can not be held guilty of negligence on account of such momentary failure to keep a lookout." (3) The court instructs the jury that if you find from the evi- dence that the engineer was guilty of negligence in failing to keep a lookout when he backed his engine, and such failure, if any, was the proximate cause of the injury to the deceased and de- ceased was free from contributory negligence, your verdict will be for the plaintiff.^^ (4) The court instructs the jury that if you believe from the evidence in the case that the husband of plaintiff was, at the time he was struck and killed, upon defendant's "coming-out" track, engaged in and about the business of removing snow and ice from the switches, and if the defendant, its agents and servants in charge of said engine, knew that he was there so engaged, or by the exercise of ordinary care upon their part could have known of the same, then it would have been negligence on the part of the said defendant, its said agents and servants, to back said engine out on said track without warning or signal made to notify said deceased of the approach of said engine; and if you find that, while said deceased was so engaged in his work, if you find he was so engaged, and that he was in the exercise of ordinary care on his part, the said defendant negligently backed said engine on to and against plaintiff's husband, without sounding the '^ Fourche River Val. &c. R. Co. v. " Warren &c. Val. R. Co. v. Wal- Tippett, 101 Ark. 376, 142 S. W. 520. drop, 93 Ark. 127, 123 S. W. 792. =* Warren &c. Val. R. Co. v. Wal- drop, 93 Ark. 127, 123 S. W. 792. § 643 INSTRUCTIONS FORMS. 7IO whistle or ringing the bell, or other warning, and thereby killed him, then the plaintiff is entitled to recover.^* (5) The court instructs the jury that if they believe from the evidence that plaintiff was in the employ of the defendant com- pany in the capacity of brakeman, and that it was his duty acting in the capacity to uncouple the log section from the trailer and passenger coach, and that he did so, and while doing so he was injured by the negligence and carelessness of the engineer in causing said train to' jerk violently and move forward with un- usual speed, your verdict will be for the plaintiff, unless you should further find that such injury was the result of plaintiff's own negligence.^^ § 643. Safety of appliances and places of work. — (1) The court instructs the jury that the employer should adopt such suitable implements and means to carry on the business as are proper for that purpose; and where there are injuries to its servants or its workmen, and they happen by reason of im- proper or defective machinery or appliances in the prosecution or carrying on the work which they are employed to render, the employer is liable, provided he knew, or might have known, by the exercise of reasonable skill, that the apparatus was unsafe and defective. If, by reasonable and ordinary care and prudence, the master may know of the defect in the machinery which he operates, it is his duty to keep advised of its condition and not needlessly expose his servants to peril or danger.^^ (2) The court instructs the jury that.it is the duty of the master to furnish a servant a reasonably safe place in which to work, and reasonably safe appliances and machinery with which to work, and that it is further the duty of the master to handle its appliances and machinery so as to avoid the injury of a servant ; and if you find from the testimony in this case that the defendant failed in either of these particulars, and that, by reason of such failure, the plaintiff was injured, without fault "■Cahill V. Chicago &c. R. Co., 205 =» Union Pac. R. Co. v. Daniels, Mo. 393, 103 S. W. S32. 152 U. S. 684, 14 Sup. Ct. 756, 38 L. "" Fourche River Val. &c. R. Co. v. ed. 597. Tippett, 101 Ark. 376, 142 S. W. 520. 71 1 MASTER AND SERVANT. § 643 or carelessness on his part, then it will be your duty to return a verdict for the plaintiff.^" (3) The court instructs the jury that the amended complaint in this case charges that the chain in question was defective and also that it was not sufficient to stand the strain to which it was put and for which purpose it was used. In order to entitle the plaintiff to recover, it is not necessary that the plaintiff should prove both of these allegations. If the plaintiff has proved tc your satisfaction by a preponderance of the evidence either of these allegations of his complaint, and if under the evidence he is otherwise entitled to recover, and the plaintiff is not guilty of contributory negligence, and has not assumed the risk, then you are instructed that the plaintiff has made his case.^" (4) The court instructs the jury that it was the duty of the defendant to furnish the plaintiff a reasonably safe place for the plaintiff to work, and if you believe from all the evidence that the defendant failed to furnish to the plaintiff, at the time and place mentioned in the proof, a reasonably safe place to work, and that by reason of such failure, if failure there was, the plaintiff while at work injured himself, while himself in the exercise of ordinary care, then the jury will find for the plaintiff, unless the defective and dangerous condition of said platform, if such there were, was so obvious and certain that the plaintiffs knew, or by the exercise of ordinary care should have known, of said dangerous condition, if dangerous condition there were, in which case you will find for the defendant.*^ (5) The court instructs the jury that it is the duty of an em- ployer, whether a corporation, or an individual, to exercise or- dinary care to provide for its employes reasonably safe tools and appliances and a reasonably safe place in which to work. The employe has the right to presume that the employer has fulfilled this obligation. The failure of an employer to exercise the care and diligence of an ordinarily prudent person in pro- viding for its employe reasonably safe tools and appliances and ""Taylorv. Evans, 102 Ark. 640, 145 "Louisville &c. R. Co. v. Carter S- W. S64. (Ky.), 112 S. W. 904. '° I. F. Force Handle Co. v. Hisey (Ind. App.), 96 N. E. 643. § 643 INSTRUCTIONS FORMS. 712 a reasonably safe place in which to work is negligence. Since the servant has the right in the first instance to presume that the master has performed his duty, he may, therefore, without being guilty of contributory negligence, act upon such presumption until he knows, or by the exercise of ordinary care and prudence ought to have known, that such tools and appliances and such place in which to work, so provided by the employer, were not safe.^^ (6) The court instructs the jury that it is the duty of the defendant company in this case to use ordinary care, diligence and caution in providing for the safety of those in its employ, and in furnishing for their use in their work and employment reasonably safe, sound and suitable appliances, tools and ma- chinery, and providing a reasonably safe place in which to work, and in keeping the same in a reasonably safe state of repair ; and an employe has the right to assume that appliances, tools and machinery and the place of employment furnished him by his employer to be used in the course of his employment are reason- ably safe, sound and suitable, and that they have been kept in a reasonably safe state of repair. The employer can not dele- gate this duty to another and thereby free himself from respon- sibility.^^ (7) The court instructs the jury that defendant is not bound to furnish the safest or newest or any particular kind of burner or burner valve except such as are in common use by ordinarily prudent and careful men and concerns under like circumstances, and that, if the jury find that the burner and burner valve used at the time of the accident was in* use by ordinarily prudent and careful people and concerns under like circumstances, then it would not be negligent on the part of the defendant to put such a burner and valve in use.^* (8) The court instructs the jury that where a perscai employs another person to do work, it is the duty of the employer to furnish his employe reasonably safe tools or implements or appli- '" Cutler V. Pittsburg Silver Peak Gold Min. Co., 34 Nev. 45, 116 Pac. Gold Min. Co., 34 Nev. 45, 116 Pac. 418. 418. '" Carr v. American Locomotive " Cutler v. Pittsburg Silver Peak Co., 26 R. I. 180, 58 Atl. 678. 713 MASTER AND SERVANT. § 643 ances or machinery, whatever the work is to be done with, and to furnish a reasonably safe place in which to do the work, and if the employer fails to furnish reasonably safe implements or tools or machinery or appliances, or fails to furnish a reasonably safe place in which to do the work, and the employe is injured thereby, the employer is liable in damages for the injury.^^ (9) The court instructs the jury that if the plaintiff was in the employment of C. and H., or either of them, then it was the duty of his employer or employers to exercise ordinary care to furnish the plaintiff a safe place to work, and this duty the employer can not delegate to others. The care required of an employer in this respect must be measured by and reasonably proportioned to the risks incident to the work, which the servant is engaged in doing. Now if you should believe from a pre- ponderance of the evidence that plaintiff was an employe of H. and C, or either of them, and was at work at a place where blasting was being done with dynamite, and plaintiff's employer or employers failed to exercise ordinary care, as that term is defined in this charge, to furnish plaintiff a reasonably safe place to work, and should further believe from the evidence that such failure (if there was such failure) on the part of his em- ployers or employer was the proximate cause to plaintiff's in- juries (if he was injured), then he would be entitled to recover against such employers or employer as failed to exercise such care.'° (10) The court instructs the jury that the defendant com- pany was bound to use ordinary care in supplying and maintain- ing proper instrumentahties for the performance of the work required and generally to provide for the safety of the servant in the course of the employment, and if it failed in the perform- ance of its duty in this particular, it is liable to its servant as it would be to a stranger if such servant himself was without fault which proximately contributed to his death." (11) The court instructs the jury that the master owes the " Rice V. LocHiart Mills, 75 S. Car. " McDonald v. Norfolk &c. R. Co., ISO, SS S. E. 160. 95 Va. 98, 27 S. E. 821. °° Farmers' &c. Milling Co. v. Jones (Tex. Civ. App.), 147 S. W. 668. § 644 , INSTRUCTIONS FORMS. 714 positive duty to an employe to provide him with a reasonably safe place in which to work, so far as the nature of the work undertaken and the exigencies of the case will permit the same to be made reasonably safe.^' § 644. Safety of appliances and places of work — Presump- tion of performance of duty. — (1) The court instructs the jury that in an action for injuries claimed to have been sustained on account of defective appliances, it is presumed that the mas- ter has discharged his duty to the employe W. L. by providing suitable appliances, and by keeping them in proper condition; and the burden is on the plaintifif to show the contrary.^* (2) The court instructs the jury that the law furnishes a further presumption that, if the car was in good repair at a date prior to the accident, it continued to remain in a like good con- dition until the accident occurred. The burden is on the plain- tifif to show that the contrary is true.*" § 645. Safety of appliances and places of work — Knowl- edge of defect by master. — (1) The court instructs the jury that if the defendant used a drawbar defective by reason of its being too short or out of repair, knowing it to be out of repair, or might have known of its want of repair by the use of ordinary care as before stated, by reason of which defective condition it was not reasonably safe to its brakeman, and the plaintiff, not knowing of such defective condition, attempted to couple the way-car to the engine and in so doing exercised the ordinary care of a reasonably prudent man, iinder all the circumstances then surrounding him, and in doing so was caught between the engine and cars and injured, you will find for plaintiff.*^ (2) The court instructs the jury that even if you should find that it was the duty of the plaintifif to strip cards at the machine at which he was injured, and that he was engaged in the line of ''Harris v. Brown's Bay Logging *°East Tennessee &c. R. Co. v. Co., 57 Wash. 8, 106 Pac. 152. Lindamood, 111 Tenn. 457, 78 S. W. '"East Tennessee &c. R. Co. v. 99. Lindamood, 111 Tenn. 457, 78 S. W. "Belair v. Chicago &c. R. Co., 43 99, Iowa 662. 715 MASTER AND SERVANT. §645 his duty at the time he was injured, and that the catch was defective, but should also find that the defendant had h.ad no notice of the defective catch or that it had not been defective long enough for the defendant to have constructive notice of this defect, and that this defective catch was the cause of the plaintiff's injury, you will answer the first issue, "No."*^ (3) The court instructs the jury that it was the duty of the defendant to furnish plaintiff's son a reasonably safe place in which to work. If you shall believe from the evidence that by reason of the condition of the roof in the mine the place where plaintiff's son was working was not a reasonably safe place in which to work, but dangerous ; and if you shall further believe from the evidence that such dangerous condition was known to the defendant, or by the exercise of ordinary care on its part such dangerous condition would have been known to the de- fendant, and that plaintiffs did not know of such dangerous condition; and if you shall further believe from the evidence that by reason of such dangerous condition the roof of said mine fell upon and killed plaintiff's son while he was in the exercise of ordinary care on his part — ^then you should return a verdict for the plaintiffs.*^ (4) The court instructs the jury that if from the evidence you should find that the defendant was guilty of negligence in failing to furnish plaintiff with a track drill which was in a rea- sonably safe condition for use, and that such negligence, if any, was the direct and proximate cause of the injuries sustained by the plaintiff, and that a person of ordinary care upon being furnished with the said track drill which was furnished to the plaintiff would have continued in the service of the defendant with the knowledge of the defect, if any, in said track drill, and the danger, if any, in operating said track drill, then your ver- dict should be for the plaintiff, and, if you so find, you will "Blevins v. Erwin Cotton Mills of minor by wrongful act, see Zim- Co., ISO N. Car. 493, 64 S. E. 428. - merman v. Denver Consol. Tramway "Stumbo V. Duluth Zinc Co., 100 Co., 18 Colo. App. 480, 72 Pac. 607. Mo. App. 63S, 75 S. W. 18S. , Death § 645 INSTRUCTIONS FORMS. 716 assess his damages in accordance with the directions hereinafter given, you with reference thereto.*^ (5) The court instructs the jury that if there was a defect in the construction or arrangement of the machine, and by reason thereof there was danger attendant upon the operation of the machine, which was known, or by the exercise of ordinary care could have been known, to the defendant, or its officers or agents, or any of them, superior in authority to the plaintiff, and said defect and danger were unknown to the plaintiff, or by the exer- cise of ordinary care could not have been known to her, and she had not equal means of knowledge of said defect and dan- ger with the defendant, or its officers or agents, or any of them superior in authority to her, and, by reason of such defect and danger, plaintifif was injured, she could recover, unless guilty of contributory negligence. *° (6) The court instructs you that before the plaintiff can re- cover, it is necessary for him to show that his injury was due to a defect in the machine at which he was working for the de- fendant, and that the defendant had notice, or could by reason- able care have had notice, of the defect in the machine.*® (7) The court instructs the jury that if you should find from the evidence that any of the appliances mentioned in the com- plaint were defective in any particular as charged in the com- plaint, then if you should further find that such defects existed for such length of time that the employer, in the exercise of ordinary care, could or should have discovered such defect or defects, it is your duty to find that the defendant did, as a matter of law, know of such defective condition.*' (8) The court instructs the jury that if the employer, know- ing the existence of any defect in any machine or appliance, places an employe to work upon or about such defective ma- chine or appliance without notifying the employe of the existence of such defect, and if the employe while so employed, and with- " Chicago &c. R. Co. v. Evans *'Blevins v. Erwin Cotton Mills (Tex. Civ. App.), 143 S. W. 966. Co., ISO N. Car. 493, 64 S. E. 428. "United Laundry Co. v. Steele, 24 "Wainwriglit v. United States Ky. L. 1899, 72 S. W. 305. Lumber Co., 73 Wash. 222, 131 Pac. 820. 717 MASTER AND SERVANT. §646 out fault on his part, is injured as the proximate result of such defect, then the employer is liable to the employe for such in- jury." § 646. Safety of appliances and places of work — Duty of inspection. — (1) The court instructs the jury' that if you find that there was a want of care and diligence on the part of the persons engaged in inspecting the wheels of the cars of defend- ant, and that the accident was caused thereby, it is not a defense for the defendant to show that it used proper diligence and care alone and only in the selection of such agents, but the defendant is responsible for the acts of his employes in repairing and in- specting the machinery to the same extent as if he were himself present doing the act.*'' (2) The court instructs the jury that if you find that the plaintiff was injured in consequence of the wreck of the train caused by a crack arid break in one of the wheels of the car on a train operated by the defendant, if you find that by the ex- ercise of proper care and caution in inspecting the wheels the crack was of such a nature that it might have been discovered by the agents or servants of the defendant employed for that purpose, then such neglect to discover the crack was negligence on the part of the defendant and for which it may be held liable in this action.'" (3) The court instructs the jury that the duty of inspection is affirmative and it must be continuously fulfilled and positively •performed. In ascertaining whether this has been done or not, the character of the business should be considered, and anything short of this would not be ordinary care.^^ (4) The court instructs the jury that under the laws of this state it was the duty of defendant, before operating or raising steam in the boiler, to have it inspected by a duly appointed boiler inspector of this state. Therefore, if you find that de- " Wainwright v. United States «" Union Pac. R. Co. v. Daniels, 152 Lumber Co., 73 Wash. 222, 131 Pac. U. S. 684, 14 Sup. Ct. 756, 38 L. ed. 820. 597. "'Union Pac, R. Co. v. Daniels, 152 "Dyas v. Southern Pac. Co., 140 U. S. 684, 14 Sup. Ct. 756, 38 L. ed. Cal. 296, 1Z Pac. 972. 597. § 647 INSTRUCTIONS FORMS. 718 fendant's failure to have this boiler inspected, as required by law, was in any way responsible for the accident complained of, then defendant would be liable in this action for such injuries as the plaintiff has shown himself to have sustained as a direct result of such failure." § 647. Safety of appliances and places of work — Hidden defects. — ^The court instructs the jury that the defendant was required to use a reasonable care, consistent with the nature and extent of the business, and provide proper machinery, but it is not responsible for hidden defects, which could not have been discovered by a careful inspection.^^ § 648. Safety of appliances and places of work — Duty to safeguard machinery. — (1) The. court instructs the jury that when work is contracted to be done which is dangerous of itself unless guarded, and the employer makes no provision in his contract for its being guarded and makes no reasonable effort to guard it himself, then he is negligent ; and, if injury result there- from, he can not escape liability on the ground that the work was done by a contractor.®* (2) The court instructs the jury that if they believe from the evidence that the guard rail of the machine in question was out of order, on the occasion when plaintiff was injured, as stated in the evidence, if they find he was injured, and that the defend- ant knew, or by the exercise of ordinary care would have known, that said guard rail was out of order a sufficient length of time before such injuries as that by the exercise of reasonable care it could have repaired and put said guard rail in order before plaintiff was injured, and if they find from the evidence that the injuries complained of were the direct result of such defective "^ Sivertson V. Moorhead, 119 Minn, could not shield itself from liability 467, 138 N. W. 674. on the ground that the work was ^ Union Pac. R. Co. v. Daniels, 152 done by a contractor whom it had U. S. 684, 14 Sup. Ct. 7S6, 38 L. ed. employed to do the work, and we 597. think there was evidence sufficient to " This instruction was held not ob- make it applicable to the case." First jectionable. "Its purpose was merely Nat. Bank v. Eitemiller, 14 111. App. to inform the jury that the defendant 22. 719 MASTER AND SERVANT. § 65O condition of such guard rail, and if they further find from the evidence that plaintiff was ordered by defendant or its foreman having charge over plaintiff to work upon said machine at the time of his injuries, and if they further find from the evidence that in view of plaintiff's age and experience he was using or- dinary care for his personal safety at the time he was injured, then the jury will find for plaintiff.^' § 649. Safety of appliances and places of work — Insuf- ficient lighting. — ^The court instructs the jury that if, from the evidence, you believe that lights or lighting was necessary for the work at which J. W. was engaged of filling the tank with oil, and that the lighting there in use at the time was insufficient and not reasonably safe for such work, and that this was due to negligence, as above defined, of defendant's agents who were intrusted by it with authority to furnish and maintain such lighting for it, and that such negligence, if shown, was a prox- imate cause of the injury and death of J. W. — ^that is, was an efficient cause — without which such injury and death would not have happened, and from which the injuries he suffered, or some like injuries, might reasonably have been anticipated as a natural and probable consequence, then return your verdict for the plaintiff, unless you find for the defendant under other instructions of the court."* § 650, Safety of appliances and places of work — Passage- ways. — The court instructs the jury that it was the duty of the defendants in this case to use ordinary care and prudence in furnishing the plaintiff with a reasonably safe passageway, at the time of the accident, along which to carry molten metal, and to use all reasonable precautions to maintain and keep such passageway in a reasonably safe condition.^' ^ Ludwig V. H. D. Williams Coop- dence" and the phrase "all reasonable erage Co., 156 Mo. App. . 117, 136 S. precautions." It was held that the in- W. 749. struction could not reasonably be con- "■ Houston Belt &c. R. Co. v. Woods strued as meaning anything more (Tex. Civ. App.), 149 S. W. 372. than it would mean if the words " Objection was made to the use "prudence" and "all" were stricken of the phrase "'ordinary care and pru- out. The instruction was not open to § 651 INSTRUCTIONS FORMS. 72O § 651. Safety of appliances and places of work — Unruly work animals. — The court instructs the jury that if you shall believe from a preponderance of the evidence that the mules driven by T. were of an unruly and uncontrollable disposition, and were known to be so by defendant, Company, or would have been known to be so by said company by the exercise of ordinary care, and believe the wagon drawn by said mules, while being driven by said T. in the business of the said company, came into collision with the wagon in which the deceased P. was, and thereby threw or caused him to fall from said wagon to the pavement of the street and be injured substantially at the time and place and in the manner alleged by plaintiff, and that as a result of such injury he died, and you believe the coming into collision of the wagon drawn by said mules with the wagon in which the said P. was, if it did that, was due to unruly and uncontrollable conduct on the part of one of the said mules, and believe defendant in using said mule for drawing its wagons, in the exercise of ordinary care, should have foreseen that an accident of like character was liable to happen, and believe defendant in using said mule for drawing said wagon was guilty of negligence under the circumstances, and believe said negligence was the proximate cause of the injury and death of said P., you will return a verdict for plaintiffs, but, unless you so find, you will return verdict for defendant."^ § 652. Safety of appliances and places of work — Railroad employment. — (1) The court instructs the jury that if they find from the evidence that the railroad companies used both the blocked and the unblocked frog, and that it is questionable exception. Deering v. Barzak, 227 principal, as distinguished from a 111. 71, 81 N. E. 1. mere agent or employe, but there is "'"The charge predicates liability no positive misdirection, and if ap- upon the negligence of the company pellant desired more complete in- in accordance with the statute, and structions in this respect, it should not upon its agents or servants. The have requested same. The error was other objections are likewise without of omission and is not reversible." merit. It is true the charge does not American Exp. Co. v. Parcarello define the relationship of a vice- (Tex. Civ. App.), 162 S. W. 926. 721 MASTER AND SERVANT. §652 which is the safest or most suitable for the business of the roads, then the use of the unblocked frog is not negligence, and the jury are instructed not to impute the same as negligence to the defendant and they should find for the defendant/" (2) The court instructs the jury that the railroad company should have used all reasonable precaution and ordinary care to secure the safety of its employes by keeping a sufficient force at command, and of sufficient capacity, to keep its roadway rea- sonably safe for the passage of its trains and the employes in charge thereof. It can not, for want of watchfulness, expose its employes to unreasonable risk and escape liability; but the duty imposed is that of 'ordinary care. The ordinary care re- quired must be measured by the danger of the service and pro- portioned by it.''" (3) The court instructs the jury that the law does not require a railroad company to maintain its locomotives in such a condi- tion of repair as to make them absolutely safe to operate, but the law requires such company to exercise ordinary diligence in providing suitable and safe machinery for its employes to work with, and if you believe from the evidence that engine No. was regularly and properly inspected by other com- petent employes of the defendant a reasonable time before and up to the time of the accident, and that no material defect or un- safe condition was discovered by such inspectors, and that in making such inspection the defendant used reasonable diligence to keep said engine in a reasonably safe condition for use by its employes at the time of the accident, then, under the law, the company performed its full duty to plaintiff with reference to "Southern Pac. Co. v. Seley, 152 duty of the railroad company to use U. S. 145, 14 Sup. Ct. 530, 38 L. ed. all reasonable precaution to secure 391. the safety of its employes and to keep ™ Objection was made to this in- a sufficient force at command to keep struction on the ground that it had its roadway reasonably safe for the the effect of telling the jury that the passage of its trains and the em- sole and principal aim in the opera- ployes in charge thereof, and this was tion of a railroad is the safety of what the court advised the jury.'' its employes. "The instruction, in Denver &c. R. Co. v. Warring, 27 our opinion,'' says the reviewing Colo. 122, 86 Pac. 305. court, "is not erroneous. It is the 46 — Branson's Inst. § 652 INSTRUCTIONS FORMS. 722 keeping said locomotive in repair, and in such case, even though the plaintiff was injured by reason of the engine being defective or out of repair, the company would not be liable therefor."^ (4) The court instructs the jury that in determining whether it (the defendant) did use reasonable and ordinary care in that regard, you may take into consideration the appliances and means, if any, which were adopted and in common and general use at the time for that purpose, at similar places, by prudently and properly conducted railroads.*^ (5) The court instructs the jury that if they believe from the evidence that plaintiff was employed as a conductor on one of the cars owned and operated by the defendant, and that he was injured by reason of the car leaving the track on account of a defective rail of the said track, and not through or on account of any fault on his part, they should find in favor of the plain- tiff and against the defendant, provided they further find that the defendant company knew or could by the exercise of ordinary care have known of the existence of the defective rail on the said track for a sufficient length of time prior to the accident for them to have made necessary repairs.*^ (6) The court instructs the jury that it was the duty of the defendant railway company to receive and transport over its line cars tendered to it by the Railway Company that are in reasonably safe and proper condition to be transported by it over its line ; and if you believe from the evidence that the de- fendant received the car from which plaintiff fell and was in- jured, if any, from the Railway Company; and if you further believe from the evidence that the defendant exercised ordinary care to see that said car was reasonably safe and prop- ■* Bfeir V. Illinois Central R. Co., v. Lamphere, 137 Fed. 20, 69 C. C. A. 243 111. 224, 90 N. E. 691. 542. °^ Jones V. Kansas City &c. R. Co., ""The instruction "is not subject to 178 Mo. 528, n S. W. 890, 101 Am. the interpretation that it assumes that St. 434. For further instructions on the rail was defective," but it "leaves safety of appliances and working that fact to be found from the evi- place, see Robertson v. George A. dence and makes its finding essential Fuller Const. Co., 115 Mo. App. 456, to the plaintiff's right to recover." 92 S. W. 130; Pittsburgh &c. R. Co. Moore v. St. Louis Trans. Co., 193 Mo. 411, 91 S. W. 1060. 723 MASTER AND SERVANT. § 653 erly equipped and supplied with appliances reasonably necessary and proper to enable its employes to perform the duties re- quired of them with a reasonable degree of safety; and if you further believe from the evidence that the defendant exercised ordinary care to keep said car in a reasonably safe condition while being transported by it over its line of railway — you will find for the defendant. Or if you believe from the evidence that the handhold on said car was defective and not reasonably safe for plaintiff to use in the discharge of his duty as brakeman, but you further believe from the evidence that said defective condi- tion consisted in a crack or break in the lag-screw which fastened the handhold to the car, and that said defect or break in said lag-screw was so hidden or obscured that it would not be dis- covered by ordinary care on the part of the defendant, and that the defendant had no actual knowledge of the defective or unsafe condition, if any, in said handhold or lag-screw, you will find for defendant, even though you may believe from the evi- dence that plaintiff's injuries were caused thereby. Or if you believe from the evidence that the injuries to the plaintiff resulted from one of the risks ordinarily incident to his employment, and not from a failure of the defendant to exercise ordinary care, you will find for defendant."* § 653. Duty to instruct and warn youthful and inexpe- rienced workmen. — (1) The court instructs the jury that if the decedent was a minor or inexperienced, and by reason thereof did not know or appreciate the danger of his employment, if any, and that the defendant knew or ought to have known this in the exercise of ordinary care on its part, then, it was the de- fendant's duty to so instruct the decedent as to both latent and patent dangers, so that, as far as might be by proper care on his part, the decedent would be enabled to perform his duties in safety to himself, and if you find from the preponderance of the evidence that the defendant failed or neglected to properly discharge any of these duties to the decedent, and that by reason of such neglect or failure the decedent was injured while in the "Missouri &c. R. Co. v. Baker (Tex. Civ. App.), 68 S. W. 556. § 653 INSTRUCTIONS FORMS. 724 exercise of due care himself, then he did not assume the risk and the defendant would be liable.''^ (2) The court instructs the jury that when one is known to be inexperienced, who is put to work upon a machine which is dangerous to operate unless with care, and by one who is famil- iar with its structure, it is the duty of the employer to instruct such person so that he will fully understand and appreciate the danger of his employment and the necessity for the exercise of due care therein. Therefore, if you find from the evidence that the employment of plaintiff at the time of his injury was danger- ous and that plaintiff was known to be inexperienced, and that defendant knew the peril or should have known the peril to which plaintiff would be exposed, and did not give him sufficient instruction therein, and if he from youth or inexperience failed to appreciate the danger, and was injured in consequence thereof, and because of defendant's negligence, and the plaintiff was not guilty of contributory negligence, then the defendant is respon- sible."' (3) The court instructs the jury that in determining whether or not the defendant exercised due care in respect to giving the deceased a warning, you may consider, if you find that the warning was given, the definiteness or lack of definiteness of such warning, its ambiguity, if any, or freedom from ambiguity, its remoteness or lack of remoteness in point of time from the time of probable contact with such danger, and all the other evidence, facts, and circumstances in the case. The duty to in- struct does not go so far as to require the master to acquaint the employe with every possible danger to which he may be Subjected in the course of his employment. The master has the right to assume that the servant will see and appreciate those dangers which are open and obvious to a person of ordinary comprehension, and will use the knowledge and experience he has gained in the course of his employment."'' "'Furlow V. United Oil Mills, 104 "'Fidelity Trust Co. v. Wisconsin Ark. 489, 149 S. W. 69, 45 L. R. A. Iron &c. Works, 145 Wis. 385, 129 (N. S.) 372. N. W. 615. ™Ittner Brick Co. v. Killian, (>] Nebr. 589, 93 N. W. 951. 725 MASTER AND SERVANT. § 654 (4) The court instructs the jury that if you find and believe from the evidence that, at the time the plaintiff J. W. E. claims to have been injured, he was a youth of immature judgment and inexperience in the business in v^rhich he was employed, and that the perils, if any, of his undertaking, were not communicated or known to him, and that by reason of such immaturity, if any, of judgment, and inexperience, if any, and want, if any, of in- formation as to the perils, if any, of his employment, he was in- capable of understanding the nature and extent of the hazard, if any, to which he was subjected, and if you further find that defendant's foreman, J., knew, or could have known by the ex- ercise of ordinary care, of the danger of said pit falling in, and if you further find that the failure, if any, of the defendant's said foreman to communicate to the said J. W. E. such perils, if any, was negligence, if any, proximately caused the plaintiff J. W. E. to be injured, then you will find for plaintiffs, unless you find for the defendant as to one or both of the plaintiffs under some other paragraph of this charge."* § 654. Duty to sound warnings to railroad employes at work on track. — (1) The court instructs the jury that if they believe from the evidence that plaintiff, at the time he was in- jured, was engaged in the performance of his duties, and that he crossed the track at a time and place where the presence of em- ployes should have been reasonably anticipated, it was the duty of defendants to give timely warning of the approach of the engine by ringing the bell or blowing the whistle ; and if they believe that defendants failed to give such timely warning of the approach of the engine, and that plaintiff, by reason of such failure and while exercising ordinary care for his own safety, was injured, they should find for the plaintiff. On the other hand, if they believe that plaintiff at the time he was injured was not engaged in the performance of his duties, or was not injured at a time and place where the presence of employes on the track should have been reasonably anticipated, or that the defendants did give timely warning of the approach of the en- "' Chicago &c. R. Co. v. Easley (Tex. Civ. App.), 149 S. W. 785. § 655 INSTRUCTIONS FORMS. 726 gine, by ringing the bell or blowing the whistle, then, in either of theSe events, they will find for the defendants."" (2) The court instructs the jury that if you believe that, under the rules of the defendant, it was the duty of the engineer to give a flag signal by blowing five short blasts of the whistle when the train stopped, or so soon as he knew the train was going to stop ; and if you further believe that he failed to give the flag signal at the time when, under the rules of the defendant, he was required to give it; and if you believe he was guilty of negligence in failing to give such signal, if he failed ; * * * and if you believe the negligence, if any, of the engineer in failing to give the signal, if he failed, was the proximate cause of the col- lision — you should find for the plaintiff/" § 655. Rules for government of employes. — (1) The court instructs the jury that it was the duty of the defendant to use ordinary care and prudence in making and publishing to its em- ployes sufficient and necessary rules for the safe running of its trains and for the government of its employes and as great a degree of care for their safety, taking into consideration their hazardous employment, as could be procured by ordinary care and prudence, and the more hazardous the employment the greater is the degree of care required by the law.'^ (2) The court instructs the jury that if they believe from the testimony the rule or notice of the defendant read in evidence, relating to the use of tracks by crews of the plaintiff's company in entering the defendant's yard from the Terminal Railroad Association yard, was habitually violated with the knowledge and acquiescence of the defendant, or was not enforced as to the switching crew with which the plaintiff worked, then the jury should disregard such notice or rule in considering the whole case.'^ (3) The court instructs the jury that if you should find from the evidence that defendant has established a rule prohibiting ™ Cincinnati &c. R. Co. v. Troxell, " Cooper v. Central R. Co., 44 Iowa 150 Ky. 185, 150 S. W. 41. 134. ™ Missouri &c. R. Co. v. Bodie, 32 " St. Louis Nat. Stockyards v. God- Tex. Civ. App. 168, 74 S. W. 100. frey, 198 111. 288, 65 N. E. 90. 727 MASTER AND SERVANT. § 65S its employes from being upon the pilot of the engine while the same was in motion, still if you find that deceased, J. H., just prior to the time of his death, was attempting to uncouple the two cars from the engine, and if you find that the handle of the pin lifter of the engine was in such a position that in order for him to perform his duty and uncouple said cars it was necessary for him to step upon the pilot or go between the engine and cars, and if you find that an ordinarily prudent person under similar circumstances and conditions would have stepped upon the pilot or would have gone between the cars for the purpose of un- coupling, and that it was the uniform custom within the knowl- edge and acquiescence of the superior officer of the defendant for brakemen to step upon the pilot or go between the cars while the same were in motion on coupling or uncoupling, then the violation of said rule by deceased, if you find it was violated, would not of itself defeat a recovery in this caseJ^ (4) The court instructs the jury that even though you may believe that defendant company had a rule requiring brakemen to couple and uncouple cars from the ground, and you further believe that J. H., deceased, was not at the time he was killed complying with that rule, but was doing the work in a manner in which the same was customarily done by the employes and servants of defendant company with the knowledge and acqui- escence of the superior officers of defendant company, then such violation of the rule, if there was any, would not preclude a re- covery in this case on account of the violation of said rule.'* (5) The court instructs the jury that, even though they should believe and find from the evidence that, at the time of the in- jury to B., the Railway Company had established the rule known as Rule , introduced in evidence, and that plaintiff had knowlege of said rule, yet, if you further believe and find from the evidence that there was an established usage and custom on the part of the defendant's switchman, at and prior to the injury to B., to go between moving cars for the purpose of uncoupling same when the chains upon said coupling "Hegberg v. St. Louis &c. R. Co., "Hegberg v. St. Louis &c. R. Co., 164 Mo. App. 514, 147 S. W. 192. 164 Mo. App. 514, 147 S. W. 192. § 656 • INSTRUCTIONS FORMS. 728 were broken, so that the pins could not be pulled with the lever, and that said established usage and custom aforesaid, if any, was known and acquiesced in by the superior officers of the Railway Company, then plaintiff, B., can not be held guilty of contributory negligence solely on the ground that he violated said rule.'^ (6) The court instructs the jury that if from the evidence you believe that defendant's agents had given out a rule or order and instructions, forbidding J. W. and employes similarly serv- ing to use their lights as he was using his lantern at the time in question, but you believe that such requirement had been habitu- ally violated and was unreasonable, as applied to the work said W. was then performing, and that such habitual violation, if shown, was known to defendant's agents, whose duty it was to enforce same, and that they had long knowingly acquiesced in such violation, and permitted the same to be practically aban- doned, then failure of said W. to comply with this requirement would not make him contributorily negligent as matter of law, if he acted as an ordinarily prudent man in his situation would have done under the same or similar circumstances. ''* § 656. Obedience to commands of superior. — ( 1 ) The court instructs the jury that in obeying the commands of the master, the servant does not assume any risks occasioned by the negligence or carelessness of the master, unless he had knowledge of such negligence or carelessness, and the danger incident thereto.'^' (2) The court instructs the jury that if the foreman told the plaintiff to tighten up the bolt when the pile driver got "into clear," and plaintiff knew, or on account of his experience in working on and about the pile driver he should have known, that the words used meant that it was the foreman's intention to move the pile driver immediately, the direction to tighten up the bolt did not constitute a command to do so at once, and '= Brady v. Kansas City &c. R. Co., Woods (Tex. Civ. App.), 149 S. W. 206 Mo. 509, 102 S. W. 978. 372. "Houston Belt &c. R. Co. v. "Taylor v. Evans, 102 Ark. 640, 145 S. W. 564. 729 MASTER AND SERVANT. § 657 plaintiff was guilty of such negligence in sitting down on the bridge in a place of danger from the moving pile driver as would preclude a recovery, and the verdict must be for the de- fendant." (3) The court instructs the jury that where one engaged in dangerous work is directed by his superior to perform a given act, he may without negligence obey such direction, if the dan- ger incident thereto is not unusual nor the risk beyond that necessarily contemplated in his employment." §657. Assumption of risk. — (1) The court instructs the jury that, in employing the plaintiff, the corporation defendant did not become an insurer of his hfe or his safety. The servant takes the ordinary risks of his employment. The duty of the defendant toward him was the exercise of reasonable care in furnishing and keeping its machinery and appliances, about which he is required to perform his work, in a reasonably safe condition. It was the defendant's duty also to use like ordinary care in selecting competent fellow servants, and in a sufficient number, to insure that the work would be safely done ; and this duty was discharged by the defendant if the care disclosed by it in these several matters accorded with that reasonable skill and prudence and care which careful, prudent men, engaged in the same kind of business, ordinarily exercise.*" (2) The court instructs the jury that if you should find in favor of the plaintiff upon the foregoing issue as to the validity of said release, then, you are further instructed that when the plaintiff entered into the employ of defendant as a switchman he assumed all the risk of being injured, while discharging his duties as such, usually incident to such employment ; and in this connection you are instructed that the negligence of the defend- ant or its employes with whom plaintiff was working at the time was not one of such risks, unless the acts constituting said negligence were of such usual and common occurrence as that "Root V. Quincy &c. R. Co., 237 '"Union Pac. R. Co. v. Daniels, 152 Mo. 640, 141 S. W. 610. U. S. 684, 14 Sup. Ct. 756, 38 L. ed. "Seaboard Air Line R. Co. v. 597. Bishop, 132 Ga. 37, 63 S. E. 785. § 658 INSTRUCTIONS FORMS. 73O plaintiff would be presumed to have known thereof before his injury.*^ (3) The court instructs the jury that the plaintiff, B., in entering upon and continuing in the employment of the said • Railway Company as a switchman, assumed all the risks ordinarily incident to the work he was called upon to perform; but he did not assume the risks, if there were any such, arising from the negligence of said cornpany or the said witness F.*^ (4) The court instructs the jury that assumed risk is the risk ordinarily incident to the employment in which one is en- gaged, and a servant in the employ of his master assumes the risks arising from defects which are known to him, or which are obvious or discernible by ordinary observation. And in this connection you are instructed that the plaintiff, while in the employ of the defendant telephone company assumed, as a mat- ter of law, all of the risks of injury that were ordinarily in- cident to the employment in which he was engaged, and if you believe from the evidence that his injuries, if any, grew out of, or were occasioned by, a risk that was ordinarily incident to his employment, then your verdict should be for the defendants. But you are further instructed in this connection that by the use of the expression, "a risk ordinarily incident to the employ- ment," is meant a risk of injury that does not arise or grow out of an act of negligence on the part of the defendants ; and that when a risk is created by an act of negligence on the part of the defendants, this is not a risk "ordinarily incident" to the employment.*^ § 658. Assumption of risk — Master's negligence. — (1) The court instructs the jury that while a servant assumes the ordinary risks incident to his master's business in which he is engaged, he does not assume those risks occasioned by the master's negli- gence, and, in this case, you are instructed that, while the plain- tiff assumed the ordinary risks incident to the work he was called *' Missouri &c. R. Co. v. Reno "^ Southwestern Tel. &c. Co. v. San- (Tex. Civ. App.), 146 S. W. 207. ders (Tex. Civ. App.), 138 S. W. "'Brady v. Kansas City &c. R. Co., 1181. 206 Mo. 509, 102 S. W. 978. 731 MASTER AND SERVANT. §659 upon to perform, he did not assume the risks, if any such, aris- ing from the neghgence of the defendant, unless such risks were occasioned by defects of which the plaintiff had knowledge or of which he is chargeable with knowledge.^* (2) The court instructs the jury that, while plaintiff, in ac- cepting employment of defendant assumed all those risks inci- dent to the employment in which he was engaged, yet plaintiff did not assume those risks, if any such there were, arising from the negligence, if any, of defendant's employe, H. B.*^ (3) The court instructs the jury that a servant of a corpora- tion, or of an individual, does not assume the risk of his em- ployment resulting from the master's failure to perform a duty which he owes to the servant. If the machinery or appliances, or place of employment provided by the master for the servant to use and work with, are dangerous for the servant to use and work with on account of facts known to the master, or which he could have known by the exercise of ordinary care, it is then the duty of the master to inform the servant of such danger, imless the servant has knowledge of the danger himself, or has had the opportunity of knowing of the danger.** (4) The court instructs the jury that, if the plaintiff was em- ployed by the defendant as a bridge watchman and was injured ' by the negligence of the servants of the defendant while operating one of its trains by striking him with a moving engine, the plea of assumption of risks would not be applicable to the plaintiff." §659. Assumption of risk — Obvious dangers. — (1) The court instructs the jury that an employe is held by the law to the use of ordinary care for his own safety, so that if he volun- tarily undertakes to do work attended with danger which is obvious, he impliedly assumes the risk involved in its execution, but it does not follow that he is guilty of negligence in working merely because he knows the work to be dangerous without re- "I. F. Force Handle Co. v. Hisey Gold Min. Co., 34 Nev. 45, 116 Pac. (Ind. App), 96 N. E. 643. ' 418. "Wright V. Dinger Min. Co., 163 "Kitchens v. Southern R. Co., 80 Mo. App. 536, 147 S. W. 213. S. Car. 531, 61 S. E. 1016. °° Cutler V. Pittsburg Silver Peak § 66o INSTRUCTIONS FORMS. 732 gard to the degrees of danger and risk involved, nor unless it be of a degree which would ordinarily deter one of ordinary pru- dence from the work/* (2) The court instructs the jury that a different rule of law applies as between the plaintiff and his employer, and as be- tween him and the railway company, touching the risks assumed by and the degree of care to be exercised toward the plaintiff in respect to the charges of negligence made by the plaintiff against these defendants, respectively, and you are instructed that, as between the plaintiff and the defendant the U. I. & F. Company, the plaintiff assumed the risk of injury from con- tact with the wires in question so far as such risks were ob- vious, or as discernible to him as they were to the defendant, the U. I. & F. Company, and its foreman, A., by the exercise of ordinary care, to the extent that their respective opportunities for inspection of such wires and knowledge of such risks were equal.** (3) The court instructs the jury that when the parties do not stand upon an equal footing — that is, where the danger of the place is not obvious and apparent to the servant, or, by the exer- cise of ordinary care and prudence on his part, would not have become apparent — then the servant has a right to assume that the master has furnished him with a safe place in which to work. But where the dangers incident to the employment are alike open and obvious to the master and servant, or by the exer- cise of ordinary care and prudence could have been seen and no- ticed by the servant, then the parties are upon an equality, and the servant assumes the risk, and the master is not liable for the in- jury to the servant resulting therefrom.*" § 660. Assumption of risk — Servant's knowledge of unsafe conditions. — (1) The court instructs the jury that to warrant a finding that a servant assumed the risks of his employment, he need not have had absolute knowledge of the risks, if they ^Alabama Steel &c. Co. v. Wrenn, *° Clark \v. St. Louis &c. R. Co., 136 Ala. 475, 34 So. 970. See also 234 Mo. 396, 137 S. W. 583. Southern Indiana R. Co. v. Fine, 163 "" Harris v. Brown's Bay Logging Ind. 617, 72 N. E. 589. Co., 57 Wash. 8, 106 Pac. 152. 733 MASTER AND SERVANT. § 66l are such that an ordinarily prudent man of plaintiff's knowledge and experience under like circumstances could by reasonable diligence have discovered thern.'^ (2) The court instructs the jury that if a servant, before he enters the service, knows, or if, by the exercise of ordinary observation in his department of sei-vice, having regard to his age and experience, he can discover that the place where he is at work is unsafe or unfit in any particular, and if, notwith- standing such knowledge or means of knowledge, he volun- tarily enters into or continues in the employment without objec- tion or complaint, he is deemed to assume the risk of the danger thus known or discoverable and to waive any claim for dam- ages against the master in case it shall result in injury to him.°- (3) The court instructs the jury that if the plaintiff knew that there was a rapidly revolving knife or knives at the edge of the lower hopper, that his hand was likely to come in contact therewith in attempting to take hold of the hopper, he must be held to have appreciated the danger and assumed the risk in attempting to do the work, although by the express direction of the defehdant."^ (4) The court instructs the jury that the true test as to whether a minor has assumed the ordinary risks of his employ- ment, or is guilty of contributory neghgence, is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known and comprehended such danger.'* § 661. Assumption of risk — Reliance on master's assurance of safety. — The court instructs the jury that the servant has a right to rely on the assurance of the master, if such assurance was given, as to the safety of the machinery, appliances, and •place of work, where the attention of the master has been called to it, unless the danger is so obvious that no prudent man would " Vasby v. United States Gypsum °° Horn v. LaCrosse Box Co., 131 Co., 46 Mont. 411, 128 Pac. 606. Wis. 384, 111 N. W. 522. " Vasby V. United States Gypsum '* Horn v. LaCrosse Box Co., 131 Co., 46 Mont. 411, 128 Pac. 606. Wis. 384, 111 N. W. 522. § 662 INSTRUCTIONS^ — FORMS. 734 use such machinery or apphances, or would work at such place, or continue the performance of his duties in such place of work.°^ § 662. Assumption of risk — Work outside line of employ- ment. — The court instructs the jury that if you find that the task at which the plaintiff was working when the accident oc- curred was, under all the circumstances of the case, one of spe- cial danger, then such knowledge of danger as plaintiff may have acquired at the usual tasks of his employment does not necessar- ily raise the presumption that he knew of such special danger. A servant directed to undertake work outside of that which he is engaged to do is no^ presumed to be aware of its peculiar risks and, therefore, if the master does not fully explain them to the servant before putting him at such new work, the servant is entitled to assume that it has no greater risk than those which attach to his regular work.°° §663. Fellow-servant doctrine. — (1) The court instructs the jury that if they shall believe from the evidence that the life of plaintiff's intestate, R., was lost solely by reason of the negligence (if any) of his fellow workmen, or any of them, in the service of the Railway Company, or by his own negli- gence and the negligence of said fellow workman combined or concurring, then the law is for the defendant, and the jury shall so find. But, although the jury may believe from the evidence that the fellow workmen of the decedent were negligent, and that such negligence on their part contributed to his injury and death, nevertheless if they shall further believe from the evidence that the defendant's agents and servants in the control and operating of its cars were also negligent, and that such negligence on their part or on the part of any of them concurred with the neg- ligence of the decedent's fellow workmen in causing his death, then the law is for the plaintiff, and the jury should so find.'' ^ Reiter-Connolly Mfg. Co. v. Ham- " Kentucky &c. Bridge & R. Co. v. lin, 144 Ala. 192, 40 So. 280. Sydnor, 119 Ky. 18, 26 Ky. L. 951, "■The instruction is not open to 82 S. W. 989, 68 L. R. A. 183. See criticism on the ground that it as- also Aiken v. Holyoke St. R. Co., 184 suraes facts not proved. Petersen v. Mass. 269, 68 N. E. 238. California Cotton Mills Co., 20 Cal. App. 751, 130 Pac. 169. 735 MASTER AND SERVANT. , § 664 (2) The court instructs the jury that, if you find and beheve from the evidence that any fellow servant or fellow. servants of plaintiff failed to exercise ordinary care for his safety on the occasion of his being injured, and that such failure or failures, if an)^, proximately caused plaintiff to be injured, then you will find for the defendant unless such failure or failures, if any, con- curred with the negligence, if any, of the defendant, as herein- before defined, and unless such concurring negligence, if any, on the part of the defendant proximately caused plaintiff to be injured."* § 664. Fellow-servant doctrine — Duty to employ capable and sufficient fellow servants. — (1) The court instructs the jury that it was the duty of the defendant to use reasonable care to learn and know whether its servants were competent and fit for their work, so that it would be reasonably safe for the de- fendant's other servants to work with them without being ex- posed to unnecessary danger to life or limb by reasons of in- competency, if any; and if defendant's servant known as S. was incompetent for his work, and if by reason thereof other servants of defendant were exposed to unnecessary danger to life and limb, and if defendant by reasonable care would have known of such incompetency and danger, if any, before the al- leged injury to plaintiff, in time by reasonable care to prevent such danger, then it was defendant's duty to use reasonable care not to expose the plaintiff to the danger, if any, of working with such incompetent servant, if any.®" (2) The court instructs the jury that if the testimony satis- fied you that there were not a sufficient number of hands when this conductor of the yard at , , started to make up the train at the time stated in the complaint, it was his duty at that time to refuse to make up the train described in the com- plaint with such inadequate help, but if you find from the tes- timony that the plaintiff nevertheless did make up the train with such inadequate help, he waived the obligation of the defendant to " Southwestern States Portland Ce- ■" Klof ski v. Railroad Supply Co., ment Co. v. Riser (Tex. Civ. App.), 235 111. 146, 85 N. E. 274. 137 S. W. 1188. § 664 INSTRUCTIONS FORMS. 736 him, and made up the train at his own risk, and if you find that from the testimony that plaintiff was injured while making up the train with inadequate help, and from such cause, he can not recover of defendant.^ (3) The court instructs the jury that if you believe from the evidence that J. A. H. was in the employ of defendant at the time he was injured with the knowledge and acquiescence of his father, J. P. H., and you further believe from the evidence that E. P. was guilty of negligence which caused injuries to said J. A. H., and that E. P., prior to said time, was a careless, negli- gent, and unsuitable person for said H. to work with, and that said J. A. H. had notice of this prior to the time he was in- jured, you will find in favor of the defendant.^ (4) The court instructs the jury that if, from the evidence, you believe that the plaintiff was injured as alleged in his peti- tion, and that such injury directly resulted from the engineef, W. D., backing the car upon him without receiving or giving a proper signal before the engine was moved, and that the moving of the engine by said D. was, under all the facts and circum- stances in this case, negligent; and you further believe from the evidence that said D. was an incompetent or reckless engineer, and that his negligence, if any, in moving said engine without receiving or giving the proper signal therefor, resulted from or was caused by his incompetency or recklessness as an engineer, should you find from the evidence that he was incompetent or reckless, and that the defendant knew of any such incompetency or recklessness of said D., or could have known of it by the use of ordinary care, and was negligent in employing and keeping said D. in its service as an engineer; that the plaintiff did not know, and could not, by the exercise of ordinary care have known, of the incompetency or recklessness, if any, of said D., — then your verdict should be for the plaintiff, unless you further find from the evidence that plaintiff was guilty of contributory negligence, or assumed the risk, as herein defined.^* ^ Caldwell v. Seaboard Air Line R. '^ Galveston &c. R. Co. v. Henning Co., 73 S. Car. 443, S3 S. E. 746. (Tex. Civ. App.), 39 S. W. 302. ' Texas &c. R. Co. v. Hervey (Tex. Civ. App.), 89 S. W. 109S. 737 MASTER AND SERVANT. § 665 § 665. Fellow-servant doctrine — Vice principals. — ( 1 ) The court instructs the jury that if yovi believe from the evidence that the injury complained of was caused by the negligence of defend- ant's superintendent while he was in discharge of the duties of such superintendent or that the injury was caused by the negli- gence of a person, to wit, A. R., who was delegated with the au- thority by the defendant to give the order complained of, and if you believe from all the evidence that the order was negligently given and that the act of negligence charged in the complaint was the proximate cause of plaintiff's intestate's death, and with- out any greater want of care and skill on the part of plaintiff's intestate than was reasonably to be expected from a person of ordinary care and prudence and skill in the situation in which plaintiff's intestate found himself, the "plaintiff was entitled to recover.^ (2) The court instructs the jury that if you become satis- fied reasonably from the evidence that A. R. had charge of raising the column, that he had charge of the men, that he dis- charged them and employed them and had the general charge of this work, that the men employed in raising the column were under his control, and that they obeyed his orders, he would be such a superintendent as is alleged in some of the counts of the complaint; so that, if you become satisfied reasonably from the evidence that he was superintendent, or acting as superintend- ent, or having superintendence instrusted to him at the time the injury occurred, or had authority intrusted to him to give or- ders, it becomes important for you to ascertain from the evi- dence whether any orders were given by A. R., and what they were, what was said, if anything, with reference to the block, and what, if anything, was said about the condition of the block, how the block was fastened on the column, and if, after considering all the evidence, you become reasonably satisfied that R.'s attention was called to the block being too short, and that he directed that the block be used, and that he would keep the strain on the chain, and plaintiff's intestate, relying on this statement, went on with his work in placing the anchor bolt ' Reiter-Connolly Mfg. Co. v. Ham- lin, 144 Ala. 192, 40 So. 280. 47 — Branson's Inst. § 665 INSTRUCTIONS FORMS. 738 through the bottom plate of the column, and A. R. knew or could have known by reasonable diligence that plaintiff's intestate was assisting in landing the column, and A. R. negligently gave the signal to slacken the chain, and the slackening of the chain loosened the block, whereby it fell and killed plaintiff's intestate, defendant would be liable unless the plaintiff's intestate could have avoided the injury in the exercise of reasonable care and diligence, or that the danger was so obvious that a reasonably prudent man would not have remained under the block.* (3) The court instructs the jury that if they find that plain- tiff was duly appointed administrator of the estate of J. W. de- ceased, and that at and prior to the death of said J. W. he was in the employ of defendant corporation and was engaged in the per- formance of his duties as such employe ; that under his said em- ployment it became his duty to set an anchor bolt at the base of a steel or iron column for the purpose of holding said column in its erect position; that in the erection of said column a block of wood had been fastened thereto by the pressure of a chain which was used in the erection of said column; that said block of wood was held in its place and prevented from falling only by the pressure of said chain; that A. R. was a person in the service or employment of defendant corporation, and had super- intendence intrusted to him by defendant over the erection of said column and over the work being done by said J. W. ; that said block was placed directly over said J. W. ; that the perform- ance of the duties of said J. W. required his attention; that said W. was in a position where the slackening of said chain would unfasten said block and cause the same to fall upon him; that the danger that said block would fall upon and injure him if the chain was slackened was well known to said R., or by the exer- cise of due diligence should have been known to said R. ; that it was the duty of said R. in the exercise of his said superintendence to use due diligence to prevent the slackening of said chain; that said R. in the exercise of said superintendence negligently ■* Reiter-ConnoUy Mfg. Co. v. Ham- veston &c. R. Co. v. Henning (Tex. lin, 144 Ala. 192, 40 So. 280. See also Civ. App.), 39 S. Wi. 302; Chicago TurnbuU v. New Orleans &c. R. Co., &-c. R. Co. v. Pollard, 53 Nebr. 730, 120. Fed. 783, 57 C. C. A. 151; Gal- 74 N. W. 331. 739 MASTER AND SERVANT. § 666 failed to exercise due care to prevent the slackening of said chain, and negligently allowed said chain to be slackened, whereby- said block was loosened and fell on said J. W. and killed him; and that the death of said W. proximately resulted from the negligence of said R. in the exercise of said superintendence, in that he negligently failed to exercise due care to prevent the slackening of said chain and negligently allowed said chain to be slackened — then the jury should find a verdict for plaintiff, unless they further find that said W. was guilty of contributory negligence which proximately contributed to his injury.'^ (4) The court instructs the jury that if you find from the evidence that the conductor of the freight train personated or represented the defendant, as vice principal, under the law of ; then he was not a fellow servant of the fireman.® (5) The court instructs the jury that where a master con- fers authority upon one of his employes to take charge and con- trol of a certain class of workmen in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge, with respect to that branch of the business is the direct representative of the master and is not a mere fellow servant — and all the commands given by him within the scope of his authority are, in law, the commands of the master, and if he is guilty of a negligent and unskilful exercise of his power and authority over the men un- der his charge, it is in law the same as though the master himself were guilty of such conduct. '^ § 666. Fellow-servant doctrine — Rule applicable where in- jury received in a sister state. — The court instructs the jury that if the accident had occurred in , under a contract of employment in , and if the injured party returns here to sue on contract, the case is governed by the fellow-servant law here.* ' Reiter-ConnoUy Mfg. Co. v. Ham- ' Illinois Steel Co. v. Hanson, 97 lin, 144 Ala. 192, 40 So. 280. 111. App. 469. " St. Louis &c. R. Co. V. Haist, 71 ' Caldwell v. Seaboard Air Line R. Ark. 2S8, 72 S. W. 893, 100 Am. St. Co., 73 S. Car. 443, 53 S. E. 746. See 65. also Harrill v. South Carolina &c. R. Co., 135 N. Car. 601, 47 S. E. 730. § 667 INSTRUCTIONS FORMS. 74O §667. Contributory negligence. — (1) The court instructs the juiy that under the law reasonable care and diligence is re- quired at the hands of plaintiff's intestate, and it also exacts at the hands of the defendants the same measure of diligence and requires at their hands the use of reasonable care and diligence in preventing any one employed by them from injury ; and while the law requires this reasonable care and diligence on the part of defendant, it does not exempt the person injured from the same degree of diligence and care in discharging the duty of his employment.' (2) The court instructs the jury that the burden of proving contributory negligence is on the defendant, and if the jury be- lieve from the evidence that plaintiff was injured by the sudden falling of the nail bed at which he was working, the mere fact that plaintiff's foot was in reach of the falling nail bed would not of itself charge plaintiff with contributory negligence unless the jury further finds under the evidence that the danger in putting plaintiff's foot where he did was so great that a man of ordinary prudence would not have done so.^° (3) The court instructs the jury that if you believe that the plaintiff makes out that kind of a prima facie case, then the burden would be shifted to the defendant to show that he, the plaintiff's husband, was not without fault, that he was negli- gent, or that the defendant and its employes exercised and used all ordinary care and diligence to prevent the injury.^^ (4) The court instructs the jury that if you find and be- lieve from the evidence that J. H. was not using ordinary care and exercising ordinary prudence at the time and place of his injury, and that the failure to use such care and prudence di- rectly contributed to cause his injury resulting in his death, then you will find for defendant, and you are instructed that ordinary care is such care as would be used by an ordinarily prudent per- son under the same or similar circumstances.^^ § 668. Contributory negligence — Disregard of warnings. — ° Reiter-ConnoUy Mfg. Co. v. Ham- " Atlantic Coast Line R. Co. v. lin, 144 Ala. 192, 40 So. 280. Jones, 132 Ga. 189, 63 S. E. 834. "Alabama Steel &c. Co. v. Wrenn, "Hegberg v. St. Louis &c. R. Co., 136 Ala. 47S, 34 So. 970. 164 Mo. App. 514, 147 S. W. 192. 741 MASTER AND SERVANT. § 669 (i) The court instructs the jury that if you believe from the evidence that plaintiff was warned by defendant not to climb the poles then being erected, but to use a ladder in the construc- tion, and that plaintiff disregarded such warning, if any, and did climb the pole, if he did so, and should you further believe that in the climbing of such pole plaintiff was himself guilty of negligence, and that same proximately contributed to his injury, then in such case plaintiff could not recover, and you should find for the defendant.^' (2) The court instructs the jury that if the foreman told the plaintiff to tighten up the bolt when the pile driver got "into clear", and plaintiff knew, or on account of his experience in working on and about the pile driver he should have known, that the words used meant that it was the foreman's intention to move the pile driver immediately, the direction to tighten up the bolt did not constitute a command to do so at once, and plaintiff was guilty of such negligence in sitting down on the bridge in a place of danger from the moving pile driver as would preclude a recovery, and the verdict must be for the defendant.'* § 669. Contributory negligence — Reasonable diligence to be exercised by employe. — (1) The court instructs the jury that "reasonable diligence," as used in these instructions, as meant by them, is such diligence as a man of ordinary care and prudence, desiring work, would make, under the circumstances surrounding plaintiff, at said place, to get it. In other words, the reasonable diligence that plaintiff should have made at said place to obtain employment is such care or diligence as such a man at such a place, desiring work, would ordinarily and rea- sonably make to get it. As to what such effort or diligence is in this case, you are to determine from the facts and circumstances surrounding the matter at the time in question.^^ (2) The court instructs the jury that if you believe that at the time of the collision the plaintiff was exercising ordinary "Abilene Light &c. Co. v. Robin- "Gillespie v. Ashford, 125 Iowa son (Tex. Civ. App.), 146 S. W. 1052. 729, 101 N. W. 649. "Root V. Quincy &c. R. Co., 237 Mo. 640, 141 S. W. 610. § 670 INSTRUCTIONS FORMS. 742 care for his own safety, then in that event you will find for the plaintiff, unless you find for the defendant under the other is- sues submitted to you/° § 670. Contributory negligence — Presumption of the exer- cise of due care. — The court instructs the jury that the de- fendant pleads contributory negligence by J. H., deceased. Upon that issue the burden of proof is on the defendant, and it de- volves upon the defendant to prove such contributory negli- gence by a preponderance of the evidence to the satisfaction of the jury, before you are warranted in finding for defendant on that issue, unless the evidence offered by plaintiff shows that he was guilty of contributory negligence. And in this connection you are further instructed that the law presumes that the said J. H. was in the exercise of ordinary care, in the absence of evi- dence to the contrary.^' § 67 1. Contributory negligence — Care in escaping impend- ing danger. — The court instructs the jury that if one, by the negligence of another, has been placed in a situation of appar- ent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror or impending danger. And if you believe from the evidence that plaintiff, through the negligence of defendant, was in a position where, under the circumstances shown in evidence, he might and did reasonably apprehend peril from falling timbers and had no time or op- portunity to deliberate, and while exercising such care to avoid the peril as a person of ordinary prudence would usually exer- cise under similar circumstances, he ran under the falling tim- bers and was injured by them, then the fact that he ran under said timbers instead of away from them, will not constitute contributory negligence on the part of the plaintiff, even if you believe from the evidence that, if he had not run under "Missouri &c. R. Co. v. Bodie, 32 ., "Hegberg v. St. Louis &c. R. Co., Tex. Civ. App. 168, 74 S. W. 100. 164 Mo. App. 514, 147 S. W. 192. 743 MASTER AND SERVANT. § 673 the timbers, or had chosen another means of escape, he would not have been injured." § 672. Contributory negligence — Care to observe dangers. — (i) The court instructs the jury that the plaintiff is required to use ordinary care for his own safety, but this does not include inspection of the cars and appliances for defects; that duty be- ing upon the defendant, and the law permitting the plaintiff to rely upon the defendant for the performance of that duty for his safety. The plaintiff is only required in the exercise of ordinary care to take notice of such defects and dangers as are patent to ordinary observation without the inspection which the law re- quires at the hands of the defendant." (2) The court instructs the jury that in considering the fifth question [as to whether or not there was any want of ordinary care on the part of the plaintiff which contributed to his injury], you are instructed that plaintiff was bound to exercise his senses, his experience and his general knowledge of the place in which he was performing his work, in order to avoid danger which he either knew, or ought to have known in the light of his age, ex- perience in the same room and building in which he had been engaged for over three years before he was injured, and his general knowledge and experience in life ; and, if he failed to do so and thereby contributed even to a slight degree to the injuries which he received, your answer to the fifth question must be "Yes.""" § 673. Contributory negligence — Encountering obvious dangers. — (1) The court instructs the jury that if you find from the evidence in this case that at the time the deceased, T. T., was attempting to put the belt on the driving pulley, his shirt sleeve became entangled in the belt of the shaft of the driving pulley on account of the negligence or inattention upon the part of the deceased, T. T., and further find that said negli- "Feddeck v. St. Louis Car Co., 125 99 Ark. 265, 137 S. W. 1103, Ann. Cas. Mo. App. 24, 102 S. W. 675. 1913B, 141. "St. Louis &c. R. Co. V. Webster, "Walker v. Simmons Mfg. Co., 131 Wis. 542, 111 N. W. 694. § 674 INSTRUCTIONS FORMS. 744 gence, if any there were, was the proximate cause of his death, then your verdict should be for the defendant." (2) The court instructs the jury that if the belt was so rotten and defective, so obviously dangerous as claimed on the part of • the plaintiff, and he went and picked it up, and it was such a belt that any reasonable man could see was defective, and he de- liberately put it on a moving piece of machinery, regardless of any rule, or any instructions, if any, you would have to say from the testimony whether or not he exercised, under the circum- stances, the care a reasonable man would have done in putting a belt on a moving piece of machinery, and the question would be, then, could he recover if he had seen, or could have seen, that it was a defective belt, and that comes under the head of con- tributory negligence.^^ § 674. Contributory negligence — Discovered peril. — The court instructs the jury that if you believe, from the evidence, under the foregoing rules of law, that on , , J. J. was in the employ of the defendant, in its yards in , as coal heaver ; and if you believe, on said date, one of the defendant's engines was approaching on the main line, on the west side of the coal chute, from the north, at a low rate of speed, to wit, about two miles an hour, for the purpose of taking coal at the coal chute; and if you believe J. J. went to jump down from the platform of the coal chute to be ready to attach to said engine its air hose, used in coaling engines; and if you believe, in attempting to jump from said platform (if he did), he slipped and fell on the track in front of the engine ; and if you believe, in attempting to jump from said platform, if he was, he was in the discharge of his duties; and if you believe he was exercising ordinary care for his own safety ; and if you believe that said engine ran over and killed the said J. J. ; and if you believe the said J. J. was run over by said engine at a point on the defendant's track that was commonly used by the defendant's employes, or over and about which its employes commonly passed ; and if you believe that the servants of the defendant in charge of said engine could, by the "^ Thompson v. Southern Lumber "" Dover v. Lockhart Mills, 86 S. Co., 104 Ark. 196, 148 S. W. 537. Car. 229, 68 S. E. 525. 745 MASTER AND SERVANT. § 675 exercise of "ordinary care" in keeping a lookout, have seen the said J. J. fall on said track, if he fell thereon, in time, by using the means in their power, to have prevented his injury and death ; and if you believe that said servants failed to keep such lookout, that is, failed to keep such lookout to discover employes on or near the track as persons of ordinary prudence would have kept under the same or similar circumstances ; and if you believe their failure to keep such lookout (if they failed) was the proximate cause of J. J. being run over and killed — then you will find for the plaintiffs.^^ § 675. Contributory negligence — Railroad employes. — (i) The court instructs the jury that if you believe from the evidence that plaintiff was in the performance of his duty in making the uncoupling of the log section from the passenger coach and trailer, and if you further believe from the evidence that the engineer had no right to move forward without a signal to do so after said uncoupling was made and that he did so with- out a signal, and the said movement was unknown to plaintiff, and that on account of said violent jerk or forward movement with unusual' speed without notice to plaintiff, and before he was ready for said forward movement, and that, on account thereof, plaintiff was thrown from said car while in the exercise of due care and injured, your verdict will be for plaintiff, unless you find that plaintiff's injuries were the result of his own neg- hgence.^* (2) The court instructs the jury that if you believe from the evidence that the plaintiff's injury was the direct result of his failure to use a coupling stick in the performance of his duties, yet he can not excuse himself and hold the defendant liable upon the ground that the other brakeman had performed the same kind of service in the same way, if he knew or ought to have known that such a performance of his duties was hazardous and in violation of defendant's rules.^° (3) The court instructs the jury that if you believe and find "'Missouri &c. R. Co. v. Jones, 35 '"Louisville &c. R. Co. v. Veach, Tex. Civ. App. S84, 80 S. W. 852. 20 Ky. L. 403, 46 S. W. 493. ""Fourche River Val. &c. R. Co. v. Tippett, 101 Ark. 376, 142 S. W. 520. § 675 INSTRUCTIONS FORMS. 746 from the evidence that J. H. got between the engine and the car to be uncoupled while the same was in motion, or was riding upon the step or pilot of the engine for the purpose of uncoupling the car, and further find that said H. could, by the exercise of reasonable strength and skill, and while upon the ground, have uncoupled the car from the engine by using the automatic coupler, and that if he so used the automatic coupler he would have avoided the injury, then you should find the issues for the defendant; unless you further find from the evidence that said H. in getting between the engine and car to be uncoupled while the same were in motion, or in riding upon the step or pilot of the engine to uncouple the car, if he did gfet between the same while they were in motion, was performing said work in the usual and customary manner and that his superior officers knew of and acquiesced in such custom and practice.^' (4) The court instructs the jury that if plaintiff asked the foreman if he (plaintiff) should go with M. to get ties and the foreman answered, "No ; you help C. put in the cord bolt, and I will get the ties" (or used words to the same effect), and if you believe the words used would, under the circumstances, have put an ordinarily prudent person on his guard and have caused him to think the intention was to move the pile driver at once, such direction to put in the cord bolt did not amount to an order to plaintiff to tighten up the bolt at once, regardless of the other work to be done in the usual way of doing such work, and with- out care on his part to ascertain whether the intention of the foreman was to depart from the usual manner of doing the work; and if by the exercise of proper care and caution on his part plaintiff would have known of the intention the foreman was to move the pile driver in the usual way, and he (plaintiff) did not use such care and caution as an ordinarily prudent per- son would have used in his circumstances, and on account of his failure to do so he was injured, the verdict must be for defend- ant." (5) The court instructs the jury that if you believe from the evidence that the plaintiff knew, or by the exercise of ordinary '" Hegberg v. St. Louis &c. R. Co., " Root v. Quincy &c. R. Co., 237 164 Mo. App. S14, 147 S. W. 192. Mo. 640, 141 S. W. 610. 747 MASTER AND SERVANT. § 676 care in the performance of his duties on the train he would have known, the train was stopping or had stopped at an unusual place, and if there was reasonable time within which a man of ordi- nary care and prudence, occupying the position on the train that the plaintiff occupied, could, by the use of the means at hand, have prevented said collision ; and if you further believe that the plaintiff did not use such means, and you further find that his failure to do so, if he did fail, was a failure to exercise ordi- nary care, and that such failure caused, or contributed to cause, the accident — you will find for defendant.^* (6) The court instructs the jury that if you believe from the evidence that the plaintiff failed to exercise ordinary care to observe the situation about him and discover the approaching train, with which his engine collided, in time to avoid the collision, and you further believe that by the use of ordinary care he could have observed said train in time to avoid the col- lision, and that his failure to do so was negligence which, in any degree, contributed to his injury, then he would be guilty of contributory negligence, as a matter of law; and if you so be- lieve, you must return a verdict for defendant; and this is so, although you may believe that any or all the other employes in question were also guilty of negligence concurring with his to produce the injury.^* §676. Conformity of proof to pleadings. — (1) The court instructs the jury that if they believed from the evidence that the plaintiff was employed to work for the firm of H. & N., as stated in the declaration, and that while he was engaged in the duties of such employment he was injured and sustained dam- age, as complained of in the declaration ; that said firm of H. & N. were negligent in the respect charged in the declaration ; that the said injury to plaintiff was caused by said negligence of the de- fendants, as charged in the declaration ; and that the plaintiff, at the time of the injury, was in the exercise of due care and cau- tion for his own safety, — then you should find for the plaintiff.^" =* Missouri &c. R. Co. v. Bodie, 32 221, 40 So. 114; Redus v. Milner Coal Tex. Civ. App. 168, 74 S. W. 100. & R. Co., 148 Ala. 665, 41 So. 634. For similar instructions on contribu- ^International &c. R. Co. v. Wray, tory negligence, see Sloss-Sheffield 43 Tex. Civ. App. 380, 96 S. W. 74. Steel &c. Co. v. Hutchinson, 144 Ala. ™ Heldraaier v. Cobbs, 195 111. 172, § 677 INSTRUCTIONS FORMS. 748 (2) The court instructs the jury that if they believe from the evidence that the defendant is guihy of the acts of negHgence charged in the declaration, and that the injury to plaintiff com- plained of resulted therefrom while he was in the exercise of or- dinary care for his own safety, the defendant is liable, and plain- tiff is entitled to a verdict.^^ § 677. Negligence a question of fact. — The court instructs the jury, as a matter of law, that the question whether the plaintiff was guilty of negligence which contributed to his in- jury, and without which the accident would not have occurred, is for the jury, and must be determined from all the facts and circumstances shown by the testimony.'^ § 678. Burden of proof. — (1) The court instructs the jury that, in order to recover in this case, the plaintiff must have proved by a preponderance of the evidence not only that it was not within the scope of his employment to be assisting at the work he was engaged in at the time of his injury, but also that some servant of defendant was guilty of some act of negligence which caused plaintiff's injury.^^ (2) The court instructs the jury that plaintiff, in his com- plaint, charges and alleges that he was injured by the negligence of the defendant railway company. It is therefore incumbent upon him, before he can recover or even make out prima facie case, to satisfy the jury, by the preponderance of the testimony, that he was injured, and that the said injury was the immediate and direct result of the negligence and carelessness of the de- fendant railway company. The burden of the proof is upon him to make out his case by the greater weight of the testi- mony. It will not be presumed that the defendant was guilty of negligence.''* 62 N. E. 853. For similar instruction, 449, 71 Pac. 371 ; Schmitt v. Missouri see Sloss-Sheffield Steel &c. Co. v. Pac. R. Co., 160 Mo. 143, 60 S. W. Hutchinson, 144 Ala. 221, 40 So. 114. 1043; Griffin v. Seaboard Air Line R. "■ St. LouTs Nat. Stockyards v. God- Co., 138 N. Car. SS, SO S. E. S16. f rey, 198 111. 288, 65 N. E. 90. =" Consolidated Coal Co. v. Haenni, " St. Louis Nat. Stockyards v. God- 146 111. 614, 35 N. E. 162. f rey, 198 111. 288, 65 N. E. 90. Con- ^ Caldwell v. Seaboard Air Line R. tributory negligence, see Colorado Co., 73 S. Car. 443, 53 S. E. 746. Midland R. Co. v. Robbins, 30 Colo. CHAPTER LXVII. MINES AND MINING. Section Section 679. Mine location under federal 680. Superintendence of mining op- laws, erations. §679. Mine location under federal laws. — (1) The court instructs the jury that the defendants have applied for a patent from the United States on what is claimed by them as the M. lode mining claim, in G. mining district in this county. The plaintiff company has brought this act in ejectment in support of an adverse claim made and filed by it to a part thereof described in the complaint as lying within the boundaries of what is claimed by the plaintif? as the A. lode. The court charges you that if the original locators of the M. lode within the time re- quired by law sank a sufficient discovery shaft thereon, posted at the point of discovery a sufficient location notice, and prop- erly put out their boundary posts marking their surface boun- daries, and on the day of , in the year , re- corded their claim in the office of the county recorder by a sufficient location certificate, in compliance with the law, and the owners thereof have ever since then performed labor or made improvements thereon each year to the amount of dollars or more, then the plaintiff company's original grantor, J. D., in attempting to locate the A. lode to include a part of such sur- face ground and in sinking the discovery shaft thereon in the month of , in the year , was prima facie a trespasser in so doing and the plaintiff can not recover in this action unless it shows that he was not a trespasser in so doing.^ (2) The court instructs the jury in the law of this case that 'Bushnell v. Croolce Min. &c. Co., 148 U. S. 682, 13 Sup. Ct. 771, 37 L. ed. 610. 749 § 679 INSTRUCTIONS FORMS. 75O if the locators of the M. mine made the location on the M. lode or vein and staked it as running down the mountain in the di- rection of the A. vein in controversy and uniting therewith or running parallel thereto substantially through the center of the surface ground of the M. lode claim, the said M. locators or their assignees are entitled to the whole of said vein as staked, even if the alleged E. vein crosses said M. vein and runs in the course of the M. vein as staked, provided that at such crossing the said veins course so together that it is simply conjectural that the said M. lode is crossed by the said so-called E. vein and does not con- tinue in its course as staked.^ (3) The court instructs the jury that the discoverer and prior locator of a lode or vein has a right to stake his lode according to his best judgment as to where it runs.^ (4) The court instructs the jury that it is not sufficient that the plaintiff merely raises a doubt in your minds as to whether the M. vein runs as the lode is staked or not. The plaintiff must satisfy you by a preponderance of the testimony that the lode does not run as staked; otherwise, upon this question, you will find for the defendants.* (5) The court instructs the jury that when a vein branches in its course a prior locator has a legal right to follow with his location whichever branch of it he chooses at the time of making such location.^ (6) The court instructs the jury that the affirmative of the issue is upon the plaintiff to prove the original location, dis- covery of gold, and the marking of the boundaries of the claim in dispute by W., prior to the day of , 19 — , and that the burden of proof in these matters is upon the plaintiff, who must establish each of them by a preponderance of the evidence. On the other hand, the affirmative of the issue is upon the de- fendants to establish that W. did not do the necessary assess- ' Bushnell v. Crooke Min. &c. Co., * Bushnell v. Crooke Min. &c. Co., 148 U. S. 682, 13 Sup. Ct. 771, 37 L. 148 U. S. 682, 13 Sup. Ct. 771, 3l L. ed. 610. ed. 610. ^Bushnell v. Crooke Min. &c. Co., "Bushnell v. Crooke Min. &c. Co., 148 U. S. 682, 13 Sup. Ct. 771, 37 L. 148 U. S. 682, 13 Sup. Ct. 771, 37 L. ed. 610. ed. 610. 751 MINES AND MINING. § 679 ment work on the claim in 19 — , or cause it to be done, and the burden of proof upon that question is upon the defendants." (7) The court instructs the jury that plaintiff claims title to the premises in dispute as a placer mining claim. The right of possession of a placer mining claim in such cases must be based on a valid location thereof in conformity with the laws of the United States." (8) The court instructs the jury that under the laws of the United States, the requisites of a valid location of placer mining claims are: First. The ground sought to be located must be vacant, unappropriated mineral land belonging to the govern- ment of the United . States. Second. The location must be marked on the ground so that its boundaries can be readily traced. Third. Discovery of mineral in the ground.^ (9) The court instructs the jury that a notice of location was not required by the laws of the United States to be either posted, filed, or recorded in the office of the mining recorder at the time of the location by W., or by W. & W. Such notice was then re- quired to be posted, filed, and recorded only when the mining rules, regulations, and customs of the district provided for it. No evidence was introduced tending to prove the existence of any local rule, regulation or custom adopted by the miners in the district where this mining claim was located requiring the posting, filing, and recording of notices of location at the time of the location of the mine in question; you are therefore in- structed that the posting, filing, and recording of such notice was not necessary to the validity of either of the locations in question. If any such notice was posted, filed, or recorded, how- ever, that is a fact which you may consider in determining whether or not either of the parties did, as alleged, in fact make a location of the ground in question.' (10) The court instructs the jury that as to whether or not there has been a sufficient marking of the location on the ground so that the boundaries can be readily traced, is a question of fact 'Walton V. Wild Goose Min. &c. "Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. 'Walton V. Wild Goose Min. &c. "Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. § 679 INSTRUCTIONS FORMS. 752 for you to decide. Any marking of the ground claimed by stakes and monuments, and written notices whereby the boun- daries of the claim located can be readily traced, is sufficient." ( 1 1 ) The court instructs the jury that it is not necessary that the marking, of the location on the ground be done by the lo- cator in person ; such marking may be done by the agents or em- ployes of the locator as well as by the locator himself." (12) The court instructs the jury that it is not necessary that a discovery of gold be made by the locator in person ; a discovery of gold made by any agent or employe of the locator, or by any person acting in his behalf and for his benefit, and if made before any intervening rights attach, will be just as valid as if made by the locator in person. ^^ (13) The court instructs the jury that it is not necessary that the acts requisite to perfect a mineral location be performed in any particular order; it is sufficient if they are all performed before any subsequent location is made.^^ (14) The court instructs the jury that in the absence of evi- dence to the contrary — and there has been no evidence to the contrary produced on the trial of this case — ^the law will presume claim No. on O. creek to be a well-known natural object and permanent monument.^* (15) The court instructs the jury that if you believe from the evidence that, prior to the time of the location by L. W. and J. H. W. of the mining claim described in plaintiff's second com- plaint, it was marked on the ground by stakes and monuments as claimed by the plaintiff, and set there by Captain W. or by others at his request and for his benefit, then and in that event you are instructed that the visible stakes and monuments placed on the ground would control the location of the claim, if the same should be inconsistent with the measurements and description contained in the location notice, provided that you should find that the location of the claim is approximately the same in both.^° "Walton V. Wild Goose Min. &c. "Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. "Walton V. Wild Goose Min. &c. "Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. "Walton V. Wild Goose Min. &c. '° Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. 753 MINES AND MINING. § 679 (16) The court instructs the jury that when a vaHd location of a mining claim is once made it vests in a locator and his suc- cessors in interest the right of possession thereto, which right can not be divested by the obliteration or removal, without the fault of the locator or his successor in interest, of the stakes and monuments marking its boundaries, or the obliteration or removal from the claim of the location notice posted thereon." (17) The court instructs the jury that if, under the forego- ing instructions, you should find that prior to the location of L. W. on the day of , 19 — , Captain E. S. W., the grantor of the plaintiff, through himself, his agents or employes, made a valid location of the mine described in plaintiff's second amended complaint, then it will be your duty to consider whether or not the annual labor was performed on said mine by plain- tiff's grantor. Captain W., during the year 19 — .^' (18) The court instructs the jury that the law does not pre- scribe the particular kind of labor which is to be performed, nor in what it shall consist, nor the manner in which it shall be per- formed. Nor does the law require that it shall benefit the claim in the sense of making the claim more valuable after the per- formance of the labor than before. And you are therefore in- structed that any labor performed upon the claim, if sufficient in amount, will satisfy the law, if its tendency is to develop the claim as a mine.^' (19) The court instructs the jury that the digging of prospect holes, or the digging of a cut or cuts, or drain ditch or ditches, the removal of brush, panning, etc., and all things done neces- sary for the doing of the assessment work, if sufficient in amount, will be compliance with the law." (20) The court instructs the jury that work done for the pur- pose of discovering mineral, whatever the particular form of the deposit, is also work and improvement within the meaning of the statute.^" "Walton V. Wild Goose Min. &c. '"Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. "Walton V. Wild Goose Min. &c. "" Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. ''Walton V. Wild Goose Min. &c. Co., 123 Fed. 209. 48 — Branson's Inst. §68o INSTRUCTIONS FORMS. 754 (21) The court instructs the jury that the law requires one hundred dollars' worth of work. And in determining the amount of work done upon a claim for the purpose of representation, the test is as to the reasonable value of said work, not what was paid for it, or what the contract price was. But it depends en- tirely upon whether or not said work was reasonably worth the sum of one hundred dollars.^^ (22) The court instructs the juiy that in estimating the value of the labor performed, the jury should consider the distance of the mine from the nearest point where labor could be procured, the cost of maintaining men while the labor was being per- formed, the current rate of wages, and any other necessary and reasonable expense which would reasonably and necessarily be incurred in the performance of the said labor.^^ § 680. Superintendence of mining operations. — The court instructs the jury that if they believe from the evidence that the defendant was not skilled in mining ore and he gave no per- sonal attention to mining operations and that the price paid by him for superintending such operations was dollars per month and that such price was extravagant and unnecessary, then the jury are instructed that no extravagant and unneces- sary expenditures should be allowed to the defendant, but only such or so much thereof as are proper and legitimate expendi- tures should be taken into account in ascertaining the real or legitimate cost of mining or the value of the ore in place.^^ "Walton V. Wild Goose Min. &c. ''Walton v. Wild Goose Min. &c. Co., 123 Fed. 209. Co., 123 Fed. 209. '^ Ege V. Kille, 84 Pa. 333. CHAPTER LXVIII. MUNICIPALITIES. Section 691. Defective sidewalks — Aggrava- tion of existing injury. 692. Defective sidewalks — Contribu- tory negligence of traveler. 693. Defective sidewalks — R i g h t of traveler to assume safety of sidewalk. 694. Snow and ice on sidewalks. 695. Snow and ice on sidewalks — Contributory negligence of traveler. 696. Temporary obstruction of side- walks in course of repair. 697. Damages for injuries to travel- ers on streets and sidewalks. 698. Defective sewers. 699. Embankments obstructing flow of water. Section 681. Changes of street grades. 682. Duty to keep streets and side- walks in safe condition. 683. Contributory negligence of trav- elers on streets. 684. Right of pedestrian to assume that travelers on street will use same legally. 685. Defective sidewalks. 686. Defective sidewalks — Nature of liability of city. 687. Defective sidewalks — Notice to city of dangerous condition. 688. Defective sidewalks — Hidden de- fects. 689. Defective sidewalks — Conform- ity of proof to allegations of pleading. 690. Defective sidewalks — Evidence of defects in vicinity of place where accident occurred. § 681. Changes of street grades. — (1) The court instructs the jury that if you find from all the evidence in this case that the plaintiffs are entitled to recover, then the measure of plain- tiffs' damages is the depreciation in the value of the property in controversy, which you find from the evidence in this case has been caused or occasioned by the change of the grade of said street and sidewalk, or from the change of the grade of the sidewalk alone, or by the accumulation and diversion of surface water,^ (2) The court instructs the jury that the city is liable un- 'Naysmith v. Auburn (Nebr.), 146 N. W. 971. 755 § 682 INSTRUCTIONS FORMS. 756 der the constitution of this state to lot owners for such damages as they may sustain by filling in the street in front of their lots above the level of the same, when the buildings were erected on the lot before the grade was established.^ § 682. Duty to keep streets and sidewalks in safe condition. — (i) The court instructs the jury that it is the duty of a city in this state to use reasonable care to keep its walks and streets in a reasonably safe condition for public travel by those who are in the exercise of ordinary care for their own safety; that where a walk or a public street remains in an unsafe condition for a considerable time and such a length of time that the city authorities, in the exercise of ordinary care and diligence, should have discovered such condition and remedied it, then notice to the city of such defective or unsafe condition of such walk or street is presumed.^ (2) The court instructs the jury that the city is not required to foresee or provide against every possible danger or accident that may occur, but is required to exercise ordinary care to keep its streets in such condition as to be reasonably safe for public travel by persons exercising ordinary care for their own safety; and it was the duty of plaintiff, in using said streets, to exercise ordinary care to prevent injury or accident to her own person.* (3) The court instructs the jury that it is the duty of the de- fendant city to keep its sidewalks in a reasonably safe condition for travel over them by persons traveling in the ordinary manner, and exercising ordinary care for their own safety; and, if the ^Naysmith v. Auburn (Nebr.), 146 that were controverted in regard to N. W. 971. knowledge of the defect and want of °"The objection made to the fore- diligence in repairing it. We do not going instruction," says the review- think the instruction is open to the ing court, "is that it inferentially tells objection made to it." Graham v. the jury that the walk or street in Rockford, 238 111. 214, 87 N. E. 361. controversy was in an unsafe condi- * Frankfort v. Chinn, 28 Ky. L. 257, tion for a considerable time — such 89 S. W. 188. For similar instruc- length of time that appellant [defend- tions on liability of city for personal ant], in the exercise of ordinary care injuries, see Beaver v. Eagle Grove, and diligence, should have discovered 116 Iowa 485, 89 N. W. 1100; Kane v. the defect— and that notice of the de- Yonkers, 43 App. Div. 599, 60 N. Y. feet should be presumed ; that the in- S. 216 ; Denver v. Murray, 18 Colo, struction assumed, as proved, facts App. 142, 70 Pac. 440. 757 MUNICIPALITIES. § 682 jury believe from the evidence that the sidewalk when and where plaintiff alleges she fell was in a reasonably safe condition for travel, then, notwithstanding plaintiff may have fallen as she alleges, your verdict must be for the defendant city.° (4) The court instructs the jury that it was the duty of de- fendant, K. C, to keep the sidewalk on the east side of H. street, between E. and N. streets of said city, in a condition reasonably safe for the use of the public, and that plaintiff had the right to presume that this duty had been performed.^ (5) The court instructs the jury that the city does not in- sure the lives of those who use its sidewalks ; nor is every defect therein, though it may cause an injury, actionable. All that the law requires is that the sidewalks shall be reasonably safe for those traveling thereon, and if you find from the evidence that the sidewalk in question was reasonably safe your verdict must be for the defendant.^ (6) The court instructs the jury that the defendant has the entire control of streets within its corporate limits and has power to provide for and enforce the manner in which said streets are to be kept and is liable to travelers on said streets for any dam- age arising, without the fault of the one injured, from placing in the street such obstructions as to render the travel upon said street hazardous to the persons or property being conveyed or passing such streets.* (7) The court instructs the jury that the defendant is bound to use reasonable care and precaution to keep and maintain its streets, bridges and sidewalks in good and sufficient repair to ren- der them reasonably safe for all persons in the exercise of or- dinary care while passing on or over the same, and if the jury be- ° Wright V. Kansas City, 187 Mo. structions on defective streets and 678, 86 S. W. 452. See also Mattoon sidewalks, see Johnson v. Sioux City, V. Faller, 217 111. 273, 75 N. E. 387; 114 Iowa 137, 86 N. W. 212; Coving- Johnson V. Sioux City, 114 Iowa 137, ton v. Huber, 23 Ky. L. 2107, 66 S. 86 N. W. 212; Gilson v. Cadillac, 134 W. 619. Mich. 189, 95 N. W. 1084; Kopper v. 'Williams v. Hannibal, 94 Mo. 549, Yonkers, 110 App. Div. 747, 97 N. 68 S. W. 380. y. S. 425. * Galveston v. Posnainsky, 62 Tex. " Perrette v. Kansas City, 162 Mo. 118, 50 Am. Rep. 517. 238, 62 S. W. 448. For similar in- 683 INSTRUCTIONS FORMS. 758 lieve from the evidence that the defendant, the City of failed to use reasonable care and precaution to keep the sidewalk mentioned in the declaration in such repair and that the injury complained of resulted from that cause as charged in the declara- tion, and that the plaintiff sustained damages thereby while ex- ercising such a degree of care and caution as under the circum- stances might reasonably be expected of one of his age and intelligence, then he is entitled to recover of the defendant in this suit." § 683. Contributory negligence of travelers on streets. — The court instructs the jury that persons using the streets of said city are bound to use ordinary care to prevent accidents and injury to themselves ; and if you find that plaintiff failed to use such care, and that such failure, if any, either caused or con- tributed to his injury, if any, then plaintiff can not recover.^" § 684. Right of pedestrian to assume that travelers on street will use same legally. — The court instructs the jury that the pedestrian has the right to use any part of the public street, including the sidewalk, for traveling, and if you believe from a preponderance of the evidence that S. M. got off of the wagon testified about, and undertook to go from the north side of M. street to the south side thereof, traveling in a diagonal direction, that he had the lawful right so to do, and in so doing he also had the right to assume that all persons in charge of auto- mobiles and driving same on and along said street would drive and operate the same in a lawful manner .^^ 'It was objected that in actions for in the evidence on this point. Since personal injuries on streets or side- this fact was conclusively established, walks it is necessary to aver and it was not necessary for the court to prove that the street or sidewalk was present it in the instruction. Parrish opened and controlled and treated as v. Huntington, 57 W. Va. 286, 50 S. a public street or sidewalk by the E. 416. municipality and that the instruction " San Antonio v. Potter, 31 Tex. should have been qualified so as to Civ. App. 263, 71 S. W. 764. For point this out. It was held that in similar instruction, see Huntingburg this case there was no contention that v. First, 22 Ind. App. 66, S3 N. E. the street was not controlled and 246; Bell v. Clarion, 115 Iowa 357, 88 treated by the defendant as a public N. W. 824. street and that there was no conflict "Bartley v. Marino (Tex. Civ. App.), 158 S. W. 1156. 759 MUNICIPALITIES. § 685 §685. Defective sidewalks. — (1) The court instructs the jury that it is the duty of the defendant to use ordinary care in keeping its sidewalks in a reasonably safe condition for persons walking upon the same, and it is the duty of those walking upon the sidewalk to use ordinary care for their own safety; and if the jury believe from the evidence that the defendant, its agents, servants, or employes, were guilty of negligence in leaving the stick over which the plaintiff stumbled, if she did stumble over same, projecting into the sidewalk, and that by reason of such negligence, if any, the plaintiff was injured, they should find for the plaintiff, unless they believe from the evidence that the plaintiff was guilty of negligence which so far contributed to her injuries that, but for the same, she would not have been in- jured, in which latter event they should find for the defendant.^" (2) The .court instructs the jury that if they find from the evidence that a plank in the sidewalk in question was loose from the stringer, and that the injury to plaintiff was caused thereby, still if the jury believe from the evidence that the sidewalk in question at the point where the injury is alleged to have oc- curred was, at the time of the injury, in a reasonably safe con- dition for travel in the ordinary modes upon a sidewalk, the jury must find their verdict for defendant. If the jury find from the evidence in the cause that the plaintiff, in passing or under- taking to pass along the sidewalk in question, did not exercise ordinary care, and that such want, if any, of ordinary care on his part, however slight, directly contributed to his injuries, if any, then the plaintiff can not recover in this action.^^ (3) The court instructs the jury that if they find from the greater weight of the evidence in the cause that at the time of the injury, if any, to the plaintiff, B. street was a public street in and of the city of H., and that there was a plank sidewalk lying in front of or opposite the property of J. M., on the south side of said street, and that a place in said sidewalk, if any, about fifty feet from the intersection of said B. street with M. street, the end of the planks or boards of which said sidewalk, if any, was con- " Louisville V. Bailey, 25 Ky. L. 6, " Williams v. Hannibal, 94 Mo. 549, 74 S. W. 688. 68 S. W. 380. § 68s INSTRUCTIONS FORMS. 760 structed had decayed and become rotten or broken, so that they had become loosened from the cross-ties, if any, beneath said walk, so that when said boards or planks, if any, were stepped upon, the ends thereof would fly up and down ; and further find that by reason of the said condition of said sidewalk, if it was in such condition, the same was not, at the time aforesaid, in a con- dition reasonably safe for ordinary travel along and over the same, and that on or about the day of , , the plain- tiff was walking along said sidewalk, and while in the exercise of ordinary care on his part, and owing to the said defective condition of said sidewalk, if the jury find it was in such condi- tion, the plaintiff's foot became caught in said defective portion, if any, of sidewalk, whereby plaintiff was precipitated to the ground, and injured, bruised, or wounded, or the lower bone of his left arm broken, and that said defective condition, if any, of said sidewalk was the direct and proximate cause of said in- jury or injuries, if any, and that said defective condition, if any, of said sidewalk had existed for such a length of time prior to the time plaintiff claims he was injured that the city, defend- ant, in the exercise of ordinary care on its part, could have dis- covered said defective condition, if any, of said sidewalk, and repaired the same, before the time plaintiff claims he was in- jured, — then the verdict of the jury should be for the plaintiff, and unless they so find their verdict should be for the defend- ant.'* (4) The court instructs the jury as follows: In this action the plaintiff seeks to recover damages from the defendant city for injuries which plaintiff alleges in his petition were received by him on , , by falling on a defective sidewalk in front of the building known as "No. H. Street," in this city. The burden of proof in this case devolves upon the plain- tiff, and, before you can return a verdict in his behalf, you must find by a preponderance of the evidence (that is, by the greater weight of the credible testimony) the following facts: First. That the plaintiff was injured by reason of falling upon a de- » Williams v. Hannibal, 94 Mo. 549, Kans. App. 171, 58 Pac. 1015; Bailey 68 S. W. 380. For instructions on no- v. Centerville, 108 Iowa 20, 78 N. W. tice to city, see Topeka v. Noble, 9 831. 761 MUNICIPALITIES. § 686 fective sidewalk at the place alleged in the petition. Second. You must further find that the defect which caused the injury was such a one as made the sidewalk not in a. reasonably safe condition for travel upon it. Third. You must also find that the defect was one that by the exercise of ordinary care could have been discovered by the city officials charged with the super- vision of sidewalks. If you find that the defect was a hidden or latent one, so that by the exercise of ordinary care and dili- gence on the part of said city officials it could not have been dis- covered, then the plaintiff can not recover. Fourth. You must also find that the defect had existed for such a length of time that said city officials would have discovered it, and would have had a reasonable time to repair it before the injury occurred, if they had used ordinary care and diligence in the discharge of their duties." (5) The court instructs the jury that if they find from the evidence that on the day of , in the year , C. street was a public street of K. City ; that on said day there was a hole in the sidewalk on the east side of said street, between E. and N. streets, at a point about twenty-five feet north of N. street, which made said sidewalk not in a reasonably safe con- dition for persons traveling over it; that said hole was known to the officers of K. City having supervision of its sidewalks, or could have been known to them if they had used ordinary care and diligence in the discharge of their duties, in time to repair the same before said day; that on said day plaintiff, M. E., while in the exercise of ordinary care, as defined in other instructions, was traveling over said sidewalk, and stepped into said hole, and was thereby thrown down and injured, then your verdict should be for the plaintiff." § 686. Defective sidewalks — Nature of liability of city. — ( I ) The court instructs the jury that it is the duty of the village authorities to keep the sidewalks along its public streets in a reasonable state of repair and in a reasonably safe and fit con- " Perrette v. Kansas City, 162 Mo. S93, 96 S. W. 1023, 6 L. R. A. (N. 238, 62 S. W. 448. S.) 1082. '"Elliott V. Kansas City, 198 Mo. § 68/ INSTRUCTIONS FORMS. 762 dition for public travel, so that pedestrians lawfully passing and repassing along and over such walks by day as well as by night may do so with reasonable safety to themselves in the exercise of due care.^' (2) The court instructs the jury that the defendant city is not an insurer of the safety of those who travel over its side- walks, and, though the jury may believe from the evidence that plaintiff fell as she has alleged in her petition, yet, if you find that her fall was not due to any negligent act or omission on the part of the city, she can not recover damages for her fall, and your verdict should be for the defendant city/' (3) The court instructs the jury that the city is not an in- surer of those who walk upon its sidewalks. In other words, because a person is injured by a fall caused by a defect in the sidewalk, it does not necessarily follow that such person is en- titled to recover damages from the city. Such person can only recover when the city has been negligent, as defined in instruc- tion No. ." § 687. Defective sidewalks — Notice to city of dangerous condition. — (1) The court instructs the jury in answer to your written request, that where a defective sidewalk has ex- isted for such a period of time as mentioned by you, and it is a defect observable and apparent to the ordinarily careful trav- " Counsel for defendant in this not say, in explicit language," says case requested the following instruc- the reviewing court, "that the village tion : "You are instructed that a mu- was not an insurer, or that the streets nicipal corporation is required to ex- are in a reasonably safe condition for ercise vigilance in keeping its streets public travel when they can be safely and sidewalks in reasonably safe con- passed over by a person who is in the dition for public travel by night as exercise of reasonable and ordinary well as by day; but it is not an in- care; but the language used was apt surer against accidents, nor is it re- and could not well have failed to con- quired to maintain the surface of its vey a proper understanding of the sidewalks free from all irregularities true rule." Hart v. New Haven, 130 and from any possible obstruction to Mich. 181, 89 N. W. 677. mere convenient travel." It was held "Wright v. Kansas City, 187 Mo. that the substance of this request was 678, 86 S. W. 452. embodied in the charge as given and " Perrette v. Kansas City, 162 Mo. that therefore there was no error in 238, 62 S. W. 448. refusing the prayer. "The court did 763 MUNICIPALITIES. § 687 eler over the same, the law presumes notice to the city, whether such defect was reported to the city or its officers or not. As before instructed, when a defect has existed for such a length of time that the officers of the city should have discovered the defect if they had exercised ordinary care and diligence, then the law presumes notice to them whether the defect had been reported to them or not, and whether they actually knew it or not.'" (2) The court instructs the jury that the plaintiff is not bound to prove that any officer or agent of the defendant, K, C, had actual notice of the condition of the sidewalk in question; but if you find from the evidence that said sidewalk was unsafe and defective, and that the plaintiff was injured by reason of such unsafe and defective condition of said sidewalk, and that a sufficient length of time had elapsed between the time when said sidewalk became defective and the date of the injury to plaintiff for the city, by the exercise of reasonable diligence, to have discovered and repaired the defect in said sidewalk, then the city was negligent in not discovering and repairing said sidewalk.'^ (3) The court instructs the jury that there is no fixed or definite rule as to the length of time the alleged defective con- dition of the sidewalk shall have existed in order to charge the defendant with negligence in failing to remedy a defect therein; that each case must depend upon the facts and circumstances attending it. And if you find from the evidence that there was a defect in said sidewalk, by reason of the loose brick and torn-up condition thereof, and that such defect had existed for a suffi- cient length of time for the officer or officers of said city whose duty it was to repair said sidewalk or to have the same repaired, by the exercise of ordinary care on their part to have discov- ered such defect, and such officer or officers had had a reasonable time after such defect might have been discovered in which to repair or cause the same to be repaired and had not done so, then the defendant is guilty of negligence, and if the plaintiff, "Wilberding v. Dubuque, 111 Iowa "Perrette v. Kansas City, 162 Mo. 484, 82 N. W. 957. 238, 62 S. W. 448. § 68/ INSTRUCTIONS FORMS. 764 as a result of such negligence and while in the exercise of or- dinary care on her part, was hurt and injured, then it is your duty to return a verdict in her favor, and the jury will so find.^^ (4) The coui-t instructs the jury that if you find from the evi- dence that the sidewalk on the east side of H. street, between E. and N. streets, and in front of the building known as No. "H. street," of said , was on the day of , , in an unsafe and dangerous condition for travel thereon by the pub- lic, and that a sufficient time had elapsed between the time said sidewalk became defective, in case you find it was defective, and the time of the injury to plaintiff, for the city, by the exercise of reasonable diligence, to have discovered and repaired said side- walk prior to the time of the accident, and if you find that the plaintiff, while lawfully traveling along said sidewalk, in the exercise of ordinary care, was thrown and injured by reason of the unsafe and dangerous condition of said sidewalk, then your verdict will be for the plaintiff.^^ (5) The court instructs the jury that, before the city can be made liable for an injury caused by a defect in a sidewalk, notice of the existence of the defect must be given to the officials of the city charged with the supervision of its streets and sidewalks. Such notice may be actually given to some official, or it may be implied from long-continued existence of such defect. The court instructs the jury that there is no evidence in this case of actual notice to any such city official of the alleged defect which caused plaintiff to fall; and unless the jury believe from the evidence that the sidewalk where plaintiff alleges she fell had been in a defective condition for sufficient length of time before plaintiff fell that said city officials would have discovered it, by the exer- cise of ordinary diligence, in time to have repaired it before plaintiff fell, then your verdict must be for the defendant city.^* (6) The court instructs the jury that if they believe from the evidence that on or about the day of , , K. avenue '^Norton v. Kramer, 180 Mo. 536, tions, see Bailey v. Centerville, 108 79 S. W. 699. Iowa 20, 78 N. W. 831 ; Topeka v. " Perrette v. Kansas City, 162 Mo. Noble, 9 Kans. App. 171, 58 Pac. lOlS. 238, 62 S. W. 448. For other instruc- " Wright v. Kansas City, 187 Mo. tions on notice of defects or obstruc- 678, 86 S. W. 452. 765 MUNICIPALITIES. was a public highway and street of , in county, ; that the wooden sidewalk upon the west side of said K. avenue, between E. and N. streets, and about opposite and adjacent to Nos. and , was out of repair, and not in a reasonably safe condition for travel thereon by footmen, by reason of the decayed, rotten, or unsound stringers thereunder, or by reason of the boards of said sidewalk being loose, unfastened, or inse- curely nailed to said stringers or supports, or both ; that defend- ant, by the exercise of ordinary diligence, could have known of the defective and unsafe condition of said sidewalk for a period of time reasonably sufficient to have repaired the same before the alleged injuries to plaintiff; that while plaintiff, in the exercise of ordinary care, was walking south on said board sidewalk, on the west side of said K. avenue, and while about opposite and adjacent to Nos. and ■ -, one of the loose boards of said sidewalk tilted and flew up, and struck plaintiff upon the left leg with such force as to throw her to and upon said sidewalk, and to injure her as complained of — then your verdict should be for the plaintiff." § 688. Defective sidewalks — Hidden defects. — The court instructs the jury that the defendant city is not liable for every defect which may exist in its sidewalks, though it may cause an injury to a person traveling over it, but it is liable for only such defects which may be discovered by the exercise of ordinary care and diligence on the part of its officials charged with the super- vision of sidewalks. If the jury believe from the evidence that the defect, if any, which caused the injury to plaintiff as she alleges, was latent or hidden, so that it could not be discovered by the exercise of ordinary care, then your verdict must be for the defendant city.^® ■"Wright V. Kansas City, 187 Mo. 678, 86 S. W. 452. For other instruc- 678, 86 S. W. 452. Notice of defect tions on defective streets and side- or obstruction, see Bailey v. Center- walks, see Covington v. Huber, 23 ville, 108 Iowa 20, 78 N. W. 831; To- Ky. L. 2107, 66 S. W. 619; Oklahoma peka V. Noble, 9 Kans. App. 171, 58 City v. Meyers, 4 Okla. 686, 46 Pac. Pac. 1015. 552; Scott v. Provo City, 14 Utah 31, ''Wright V. Kansas City, 187 Mo. 45 Pac. 1005. § 689 INSTRUCTIONS FORMS. 766 § 689. Defective sidewalks — Conformity of proof to alle- gations of pleading. — The court instructs the jury that plain- tiff can not recover damages in this action for any injury which was not received at the time and place alleged in her petition; that is to say, , , and on the sidewalk on the west side of K. avenue, about opposite and adjacent to Nos. and ,in , .^' § 690. Defective sidewalks — Evidence of defects in vicinity of place where accident occurred. — The court instructs the jury that he has permitted evidence to go to you tending to show that the walk within a short distance from the place where it is claimed the accident happened was out of repair; that is, that boards were loose at other places in the same block. You are especially instructed that this testimony should be considered by you, as against the city, only for the purpose of tending to show, if it does (and that is for you to say), whether or not the city authorities should have had knowledge or notice of the condition of the walk or plank where the accident is claimed to have hap- pened, by the exercise of reasonable care.^' § 691. Defective sidewalks — Aggravation of existing in- jury. — (1) The court instructs the jury that if you find from the evidence that the plaintiff was caused to fall by a defect in the sidewalk negligently permitted to exist by the defendant, the defendant is responsible for all ill effects which naturally an^ necessarily follow the injury in the condition of health in which plaintiff then was at the time of such fall, and it is no defense that such injury may have been aggravated and rendered more diffi- cult to cure by reason of plaintiff's state of health at that time, or that, by reason of latent disease, the injuries were rendered more difficult to cure by reason of plaintiff's state of health at that time and by reason of latent diseases the injuries were rendered more serious to her than they would have been to a person in robust health.'" " Wright V. Kansas City, 187 Mo. ^ This instruction,- refused by the 678, 86 S. W. 4S2. trial court, should have been given, ^ Bailey v. Centerville, 108 Iowa 20, as it was held to embody ''a correct 78 N. W. 831. statement of the law upon the subject 767 MUNICIPALITIES. § 692 (2) The court instructs the jury that if you beheve that all or any part of the physical ailments or consequent pain and suffer- ing which plaintiff alleges she has now, existed in plaintiff be- fore her alleged fall, then for all pre-existing ailments you can award plaintiff no damages.''" § 692. Defective sidewalks — Contributory negligence of traveler. — (1) The court instructs the juiy that unless they believe from all the evidence, facts, and circumstances in proof that plaintiff was guilty of some act of negligence which an or- dinarily prudent person would not have done under similar cir- cumstances in the use of said sidewalk, which contributed prox- imately toward causing said injury to plaintiff, the jury should not find against the plaintiff on the ground of contributory negli- gence set up in the defendant's answer; and, although plaintiff may have known the condition of sidewalk, the law did not re- quire of her the exercise of extraordinary care in passing and traveling on said walk, but only that she exercised such care and prudence as an ordinarily prudent person would have exercised under like circumstances.^^ (2) The court instructs the jury that if they find from the evidence in the cause that the plaintiff, in passing or undertaking to pass along the sidewalk in question, did not exercise ordinary care, and that such want, if any, of ordinary care, on his part, however slight, directly contributed to his injuries, if any, then the plaintiff can not recover in this action.^^ (3) The court instructs the jury that the burden is upon the defendant to prove to the reasonable satisfaction of the jury by the preponderance or greater weight of the evidence the defense of contributory negligence pleaded in defendant's answer, and, if it has failed to so prove and satisfy the jury, the finding must be for plaintiff on this issue ; and although the jury may find that there involved and upon the evidence on contributory negligence, see Indi- introduced." Jones v. Caldwell, 20 anapolis v. Mullally, 38 Ind. App. 125, Idaho S, 116 Pac. 110. 11 N. E. 1132; Dodge v. Laraont, 130 '"Wright V. Kansas City, 187 Mo. Iowa 721, 107 N. W. 948; Metz v. 678, 86 S. W. 4S2. Butte, 27 Mont. S06, 71 Pac. 761. ='Reno V. St. Joseph, 169 Mo. 642, »= Williams v. Hannibal, 94 Mo. 70 S. W. 123. For other instructions App. 549, 68 S. W. 380. § 692 INSTRUCTIONS FORMS. 768 plaintiff knew of the condition of said walk, the law did not re- quire of him the exercise of extraordinary care in traveling over said walk, but only that he exercise such care and prudence in passing over and upon said walk as a person of ordinary care and prudence would use under like circumstances.^^ (4) The court instructs the jury that they can not find for the plaintiff in this cause unless they believe from the evidence that at the time A. P., the plaintiff, was injured, he was using ordi- nary care and prudence. And, in examining into the question as to whether or not he was exercising ordinary care and prudence at the time and place of his injury, you must take into considera- tion all the facts and circumstances, as shown by the evidence, tending to shed any light on the kind of care used by him at the time of his alleged injury; and, if you believe from the evidence that he was not using ordinary care and prudence to avoid injury, then your verdict must be for K. City.''* (5) The court instructs the jury that, if you find as a fact that the plaintiff knew that the sidewalk at the point where he alleges he fell and was injured was out of repair and in bad con- dition, you may take that fact into consideration in determin- ing whether or not plaintiff was negligent; but such knowledge will not be a defense in this action unless you find that the defect of which the plaintiff knew, if any, was such a defect as to render the walk necessarily dangerous to a person ordinarily careful.^^ (6) The court instructs the jury that it is the duty of persons traveling over the sidewalks of a city to use their eyes and other senses to avoid defects which are obvious or could be discovered by the exercise of ordinary care on their part, and if the jury believe from the evidence that plaintiff, by the exercise of ordi- nary care, could have avoided or passed over the defect, if any, " Williams v. Hannibal, 94 Mo. " Perrette v. Kansas City, 162 Mo. App. 549, 68 S. W. 380. 238, 62 S. W. 448. See also Metz v. ^ Perrette v. Kansas City, 162 Mo. Butte, 27 Mont. 506, 71 Pac. 761 ; San 238, 62 S. W. 448. See also Frank- Antonio v. Potter, 31 Tex. Civ. App. fort V. Chinn, 28 Ky. L. 257, 89 S. W. 263, 71 S. W. 764; Dodge v. Lament, 188; Metz v. Butte, 27 Mont. 506, 71 130 Iowa 721, 107 N. W. 948. Pac. 761; Bell v. Clarion, 115 Iowa 357, 88 N. W. 824. 769 MUNICIPALITIES. § 694 which she alleges caused her injury, then your verdict should be for the defendant city/' § 693. Defective sidewalks — Right of traveler to assume safety of sidewalk. — The court instructs the jury that the plaintiff, M. E., had the right to assume that she could use the sidewalk, on which she alleges she was walking when she fell, with safety, using such care as an ordinarily prudent person would exercise under like circumstances, and, though she may have known the sidewalk was defective, yet this fact alone would not prevent her from recovering in this action, but should be taken into consideration by the jury with other facts and circum- stances in evidence as to whether she was exercising ordinary care as above defined.^' § 694. Snow and ice on sidewalks. — (1) The court instructs the jury that as to the other allegations in the plaintiff's petition the defendant has permitted the sidewalk in question to be im- properly constructed with surface thereof broken so that the same was made slippery by melting snow and ice, or from want of proper drainage, and that by reason of such defective construc- tion, as charged in said petition, you are instructed that such allegation would constitute a ground or cause of action against the defendant, and that the cause of action thereon was not commenced within three months from the happening of the al- leged injury, and that the same is now barred. You will there- fore in your further consideration of this case, consider only the act of negligence set forth and charged in said notice, and as the same are heretofore set forth as a basis for a recovery.^* (2) The court instructs the jury that it was the duty of the city defendant to keep its sidewalks in reasonably safe condition for travel thereon in the ordinary modes by day or by night, and if the jury believe from a preponderance of the evidence that hy reason of the accumulation of snow and ice and the formation of a ridge or rough and uneven surface on the sidewalk, of snow "Wright V. Kansas City, 187 Mo. S93, 96 S. W. 1023, 6 L. R. A. (N. S.) 678, 86 S. W. 452. 1082. "Elliott V. Kansas City, 198 Mo. '"Finnane v. Perry (Iowa), 145 N W. 494. 49 — Branson's Inst. § 694 INSTRUCTIONS FORMS. 77O and ice, at the time and place where plaintiff claims to have been injured, on the west side of N. E. street, in front of house No. , in the city of S., the said sidewalk had become and was in an unsafe condition for travel thereon by day or night, and that defendant's corporate authorities knew, or might by the exercise of ordinary care and diligence have known, of the unsafe condi- tion thereof in a reasonable time to have removed said snow and ice and repair said walk before the alleged injury of the plaintiff, and that, while plaintiff was walking on said sidewalk where it was so defective and unsafe, she slipped and fell down upon the sidewalk without fault or want of ordinary care on her part, and she was thereby injured, then the jury must find for the plaintiff, although the jury may further believe from the evidence that plaintiff knew of the alleged defect in said sidewalk, or con- dition thereof.^' (3) The court instructs the jury that if they believe from the evidence that the sidewalk in question was unsafe by reason of the accumulation of snow and ice on said sidewalk, as mentioned in other instructions herein, at the time and place when and where plaintiff claims to have been injured, and that it had been so un- safe for such length of time as, by reasonable diligence and care in the performance of their duties, its condition ought to have been known by the corporate authorities in a reasonable time to have removed the said snow and ice therefrom before said alleged injury to plaintiff, then notice to defendant of its condition will be presumed, and proof of actual knowledge thereof upon the part of said corporate authorities will not be necessary; and, if said sidewalk were permitted to be and remain unsafe under such circumstances, then the said corporate authorities were negli- gent, and the defendant city is responsible for said negligence.*" (4) The court instructs the jury that before you can find a verdict for the plaintiff, you must not only believe from the evi- dence that the snow and ice had been allowed to accumulate on the sidewalk in question in uneven or irregular masses or ridges, so as to make the same unsafe and dangerous to people travel- ing thereon, but you must further find from the evidence that "Reno V. St. Joseph, 169 Mo. 642, "Reno v. St. Joseph, 169 Mo. 642, 70 S. W. 123. 70 S. W. 123. 771 MUNICIPALITIES. § 694 such dangerous and defective condition was known to the city, or had existed for such a length of time that the city, by the exer- cise of ordinary diligence, could have known such fact and re- moved the same prior to the time plaintiff was injured; and, unless you so find, your verdict must be for the defendant.*^ (5) The court instructs the jury that the defendant city is under no obligation to the traveling public who may use its streets and sidewalks to remove from its sidewalks snow and ice which produces a slippery condition only, nor is it responsible for in- juries sustained solely by reason of any of its sidewalks being in a slippery condition. If, therefore, you believe from the evidence in this case that the sidewalk in question where plaintiff was in- jured was in a slippery condition, only, on account of such snow and ice, and that snow and ice had not accumulated in uneven or irregular masses or ridges, and that plaintiff was injured by reason of the fact that said sidewalk was in such slippery condi- tion, then your verdict must be for the defendant.^^ (6) The court instructs the jury that if they believe from the evidence that snow had fallen upon the sidewalk, and persons traveling on said sidewalk packed it down so that it formed a ridge or rough and uneven surface on the sidewalk, and in con- sequence thereof said sidewalk was not reasonably safe for travel thereon in the ordinary modes, then it was out of repair and defective, within the meaning of the instructions in this case ; and if said defective condition of the sidewalk had existed for such length of time prior to the alleged injury of plaintiff that the corporate authorities of the city could and ought to have known its condition, in the exercise of ordinary care and dili- gence, in a reasonable time to have repaired the same by re- moving said ice and ridge before the alleged injury to plaintiff, and failed to do so, then the city was negligent, and is responsible in damages for any injury that may have been caused to plaintiff by reason thereof, provided plaintiff was in the exercise of ordi- nary care herself.*' " Reno V. St. Joseph, 169 Mo. 642, " Reno v. St. Joseph, 169 Mo. 642, 70 S. W. 123. 70 S. W. 123. " Reno V. St. Joseph, 169 Mo. 642, 70 S. W. 123. § 695 INSTRUCTIONS FORMS. 772 (7) The court instructs the jury that if they believe from the evidence that prior to the time the plaintiff was injured the snow or ice which had fallen or accumulated on the brick sidewalk mentioned in evidence had been removed in the ordinary way with a shovel or other instrument, and that at the time of the injury no snow or ice remained on said sidewalk except, such as adhered to the sidewalk on account of having been tramped down and packed by the travel of pedestrians, and which could not be re- moved by the exercise of such means as ordinarily prudent persons would employ under such circumstances, and that the plaintiff slipped and fell on such snow or ice remaining on said sidewalk, then the defendant is not liable, and your verdict must be for the defendant.** (8) The court instructs the jury that the burden is on the plaintiff of establishing by a preponderance of all of the evidence that the sidewalk in question was in a dangerous or defective con- dition by reason of snow or ice having been permitted to accu- mulate and remain thereon in uneven ridges or masses, and that the city had notice of such condition, or that such condition had existed for a sufficient length of time for the city, by the exercise of ordinary diligence, to have known such fact, and to have re- moved the same; and, unless such facts are established to your satisfaction by a preponderance of all the evidence, then your verdict should be for the defendant.*^ § 695. Snow and ice on sidewalks — Contributory negli- gence of traveler. — (1) The court instructs the jury that if they believe from the evidence that the defendant was guilty of contributory negligence, then your verdict must be for the de- fendant. On the question of contributory negligence, you are instructed that even though you may believe from the evidence that the sidewalk in question was in a defective, dangerous, or unsafe condition, caused by the accumulation of ice and snow, which made the surface of said sidewalk uneven and irregular, yet if you further believe from the evidence that plaintiff, while walking along and over said sidewalk, was not using such care '"Reno V. St. Joseph, 169 Mo. 642, '"Reno v. St. Joseph, 169 Mo. 642, 70 S. W. 123. 70 S. W. 123. 773 MUNICIPALITIES. § 696 and caution in looking out for her own safety as a reasonably prudent person would have been using under like circumstances, then she is guilty of contributory negligence, and can not recover in this case, no matter how much snow or ice may have been upon the sidewalk, and no matter how or in what shape it may have formed or accumulated, and no matter how negligent you may be- lieve the defendant might have been in failing to remove the same.*" (2) The court instructs the jury that if they believe from the evidence that the plaintiff knew that the sidewalk in question was in a dangerous and unsafe condition by reason of an accumulation of ice and snow thereon, and that, knowing such fatts, she was walking along said sidewalk without exercising the care and cau- tion that a reasonably prudent person would have used under like circumstances, and slipped and fell, and was thereby injured, then your verdict must be for the defendant."^ § 696. Temporary obstruction of sidewalks in course of repair. — (1) The court instructs the jury that, while the de- fendant had the right to obstruct, temporarily, the passage of travel over the sidewalk when the plaintiff's injury is alleged to have occurred, for the purpose of grading and paving the said sidewalk, it was not authorized to leave or permit to be left said obstruction while undergoing such grading or paving in such con- dition as unnecessarily to expose those who might pass upon it to danger, and that in such condition said obstruction or sidewalk should not have been left without signals or beacon lights, espe- cially at night, to warn travelers of its condition against such dan- ger, and that if the jury believe from the evidence that such rea- sonable and precautionary measures were not adopted for the safety of such citizens or travelers, and the defendant by rea- sonable diligence could have ascertained that fact, the defend- ant was culpable and is liable for injuries, if any, resulting to the plaintiff therefrom if without such knowledge and without any fault on his part he was injured thereby.** '" Reno V. St. Joseph, 169 Mo. 642, " Stanton v. Parkersburg, 66 W. 70 S. W. 123. Va. 393, 66 S. E. 514. "Reno V. St. Joseph, 169 Mo. 642, 70 S. W. 123. § 697 INSTRUCTIONS FORMS. 774 (2) The court instructs the jury that if the defendant, in re- pairing its pavements, placed obstructions in and across the same that prevented plaintiff from using the same, then she had the right, in order to get around said obstructions, to leave the pave- ment/' § 697. Damages for injuries to travelers on streets and sidewalks. — (1) The court instructs the jury that if she has been prevented by said accident from performing labor on her sewing machine, you should inquire and determine from evidence to what extent she has been disabled, if any, and whether or not, under the evidence, such disability will probably continue, and allow her for such disability such sum as the evidence shows she may be entitled to. But the entire sum should not exceed the amount claimed in the petition.^" (2) The court instructs the jury that if you find for the plain- tiff you will assess his damages at such a sum, not exceeding ten thousand dollars, as will be a fair and just recompense for the injury received by him. In fixing the amount of such damages, you will take into consideration the loss of earning capacity of plaintiff, his expenses for medical service and attendance, the nature and extent of physical injuries received, the bodily pain and mental anguish endured, and any and all such damages as it appears from the evidence will reasonably result from said in- juries in the future.^^ (3) The court instructs the jury that if you find for the plain- tiff, in estimating his damages you will take into consideration the physical injuries, if any, inflicted, the bodily pain and mental anguish, if any, endured, and his inability, if any, to perform his ordinary avocations, and assess his damages at such amount, not exceeding one thousand dollars, as in the opinion of the jury will fairly compensate plaintiff for his injuries, if any, sustained.^^ (4) The court instructs the jury that if they find for the plaintiff, they will assess her damages at such sum as they believe from the evidence will compensate her for the injuries sus- " Frankfort v. Chinn, 28 Ky. L. " Perrette v. Kansas City, 162 Mo. 257, 89 S. W. 188. 238, 62 S. W. 448. "» Bailey v. Centerville, 108 Iowa 20, " Williams v. Hannibal, 94 Mo. 78 N. W. 831. App. S49, 68 S. W. 380. 775 MUNICIPALITIES. § 698 tained by her as shown by the evidence, if any ; and in estimating such damages the jury will take into consideration not only the physical injury inflicted, the bodily pain and mental anguish en- dured and suffered, if any, and her inability by reason of said in- juries to perform her ordinary , avocations of life, but may also allow for such damages as it appears from the evidence as to the nature and extent of her injuries will reasonably result to her therefrom in the future, not to exceed in all the sum of ten thousand dollars/^ (5) The court instructs the jury that the fact whether the plaintiff was chaste and of moral character, or not, at, prior, or subsequent to the time of the alleged injuries, should not be con- sidered by the jury in determining the negligence of the defend- ant, , as alleged, and the right of the plaintiff to recover for injuries received, if any.°* § 698. Defective sewers. — (1) The court instructs the jury that if you believe from the evidence that the sewer in street referred to in the proof was negligently permitted to be- come and remain stopped up, and that by reason thereof the water or sewage from said sewer was caused to flow back into plaintiffs' property through the connecting pipe referred to in the proof, and plaintiffs were thereby injured, and you further believe from the evidence that defendant knew or by the exer- cise of ordinary care could have known of the stoppage in said sewer, if there was any, long enough before the flowing back of the water or sewage into plaintiffs' property through the con- necting pipe, if any there was, so as to have enabled the defendant by the exercise of ordinary care to have removed or caused to be removed said stoppage before said flowing back of said water or sewage into plaintiffs' property and thereby prevented the injury to plaintiffs' property, if there was any on said account, then you will find a verdict for plaintiffs/^ (2) The court instructs the jury that if you believe from the "^ Reno V. St. Joseph, 169 Mo. 642, "" Toebbe v. Covington, 145 Ky. 763, 70 S. W. 123. 141 S. W. 421. •"Wright V. Kansas City, 187 Mo. 678, 86 S. W. 452. § 698 INSTRUCTIONS FORMS. 7/6 evidence that the sewer in street referred to in the proof was not Stopped up, or if you beHeve from the evidence that it was stopped up, but that defendant did not know of said stop- page or by the exercise of ordinary care could not have known of said stoppage long enough befora the flowing back of the water or sewage through the connecting pipe into plaintiffs' property to have enabled defendant in the exercise of ordinary care to have removed or caused to be removed said stoppage before said backing of said water or sewage into plaintiffs' property, or if you believe from the evidence that there was a stoppage in the sewer in street, but that said stoppage did not cause the water or sewage to flow back through the connecting pipe into plaintiffs' property, or if you believe from the evidence that the water or sewage was caused to flow back into plaintiffs' property through the connecting pipe by reason of any other cause what- soever other than the stoppage of the sewer in street, then in either or any of said events you will find a verdict for de- fendant. The word "negligently" as used in the foregoing in- struction, means the failure to exercise ordinary care, and the words, "ordinary care" means that degree of care which or- dinarily careful and prudent persons engaged in the same or sim- ilar business ordinarily exercise under the same or similar cir- cumstances. °° (3) The court instructs the jury that if you find a verdict for plaintiffs, you will award them such sum of money as you may believe from the evidence will fairly and reasonably compensate them for the cost of disconnecting the drain referred to in the proof, not exceeding on this account the sum of $ , and for the diminution, if any, in the value of the use and occupancy of the property referred to in the proof to plaintiffs from the time of the flowing back of the water or sewage into plaintiffs' prop- erty in , , up to the date of the filing of the petition herein arising solely and exclusively by reason of the water or sewage flowing back into the property and cellar of plaintiffs through the drainpipe referred to in the proof, if you believe from the evidence that said water or sewage did so flow back into said '' Toebbe v. Covington, 145 Ky. 763, 141 S. W. 421. y'J'J MUNICIPALITIES. § 698 cellar through said drainpipe, but your verdict must not in any event exceed the sum of $ , the amount prayed for by plain- tiffs in their petition. The court instructs the jury that they shall not consider, in arriving at a verdict in this case, any damage or injury to the plaintiffs, or their use or enjoyment of their prop- erty occasioned by any overflowing of said property prior to the overflow described in the proof as occurring in , nor subse- quent to the disconnecting of the pipe from plaintiffs' property to said sewer, up to the filing of the petition on , .°^ (4) The court instructs the jury that if the jury believe from the evidence that plaintiffs, whilst using the pavement or streets of defendant in a reasonable and prudent manner and exercising ordinary care to prevent injury or accident to her own person, fell into an open sewer, that she did not know was open, and was thereby injured, and further believe that the defendant knew, or by the exercise of ordinary care could have known, said sewer was open a sufficient length of time before said injury to have closed the same by exercising reasonable diligence, and believe that the injuries to plaintiff were caused by the negligence or carelessness of defendant in failing to close said sewer or keep the streets in a reasonably safe condition for travel by persons exercising ordinary care for their own safety, they should find for plaintiff, and assess her damages at such a sum, not exceed- ing $ , as will fairly compensate her for the mental and physical pain she has suffered or may suffer by reason of said in- jury, if any, and for the permanent impairment of her power to earn money, if any, due to said injury.^^ (5) The court instructs the jury that if they believe from the evidence that the street, at the place where plaintiff was in- jured, was in a reasonably safe condition for public travel by per- sons exercising ordinary care to prevent injury or accident to their own persons, or believe that the city did not know, or by the exercise of ordinary care could not have known, that the sewer was open a sufficient length of time before the injury to have closed same by using reasonable diligence, or if they believe that plaintiff was not exercising ordinary care for her own safety " Toebbe v. Covington, 145 Ky. 763, " Frankfort v. Chinn, 28 Ky. L. 2S7. 141 S. W. 421. 89 S. W. 188. § 699 INSTRUCTIONS FORMS. 778 when she was injured, or if they believe that by her own negH- gence or failure to exercise ordinary care she caused or con- tributed to her injury to such an extent that, except for her negligence or want of ordinary care, the injury would not have happened, they should find for defendant.'" § 699. Embankments obstructing flovi^ of water. — The court instructs the jury that if said embankment was raised above the established grade of the street, it was an obstruction for which the defendant is responsible, though it did not directly create or make the obstruction or authorize it to be done, and if said em- bankment was and is an obstruction to the natural flow of the water upon and across said street and causes the water to dam up and flow back upon the adjacent premises to the injury of the owner, the defendant is liable, if at the time of the injury the premises were as high as the grade of the street, and if defend- ant, in grading and working its streets, obstructs the natural flow of surface water and, by reason of its failure to prove neces- sary channels for carrying off the water, it is caused to flow in increased quantities upon the adjacent premises to the injury of the owner, for such injury the defendant is liable if no fault of the owner contributed thereto. °° ™ Frankfort V. Chinn, 28 Ky. L. 257, »°Damour v. Lyons City, 44 Iowa 89 S. W. 188. 276. CHAPTER LXIX. NEGLIGENCE. Section Section 700. Negligence defined. 709. Dangerous machinery. 701. Injuries the result of mere acci- 710. Recovery limited to negligence dent. alleged in pleadings. 702. Gross negligence— Wilful negli- 711. Sufficiency of evidence to estab- gence. lish negligence. 703. Ordinary care. 712. Duty of jury to take into consid- 704. Care to avoid injury to infants. eration situation of parties. 705. Joint negligence. 713. Burden of proof. 706. Proximate cause. 714. Right cff jury to disregard evi- 707. Care in respect to dangerous dence contrary to physical premises. facts. 708. Dangerous excavations. §700. Negligence defined. — (1) The court instructs the jury that negligence is the wrongful doing of an act, or the wrong- ful omission to act, which results in damage, but without intent to do wrong or cause damage. Under this definition it is not neces- sary, nor does the law require, that an intent to do wrong, or an intent to cause injury, should be shown.^ (2) The court instructs the jury that actionable negligence consists in the neglect of the use of ordinary care and skill to- ward a person to whom the defendant owes the duty of observ- ing ordinary care and skill, by which neglect plaintiff has suf- fered injury to his person.^ (3) The court instructs the jury that negligence in law is a breach of duty. It is the failure to exercise that degree of care in given circumstances which a person of ordinary prudence would exercise in similar circumstances. It is the neglect to per- form, or the improper or insufficient performance of, a legal ' Reiter-Connolly Mfg. Co. v. Ham- ' Reiter-Connolly Mfg. Co. v. Ham- lin, 144 Ala. 192, 40 So. 280. lin, 144 Ala. 192, 40 So. 280. 779 § 700 INSTRUCTIONS FORMS. 780 duty. The burden is upon the plaintiff to prove that no breach of duty on his own part contributed essentially to his injury. The plaintiff is bound to prove, not only the negligence charged, but also that such negligence caused the alleged injury. In this case, the question to be settled by you is whether there has been such a breach of duty, and then determine whether or not there has been in fact such a breach of duty in this case. What consti- tutes a breach of duty is a question of law upon which you will be instructed by the court. Whether in fact there has been such a breach of duty is a question of fact for you alone to decide. The court will state to you the law, and you will be expected to follow its interpretation and instructions strictly; but as to the questions of fact which may be involved, they are entirely within your province for decision. The legal duty which this defend- ant owed to this plaintiff, in the situation set out in this com- plaint and claimed to have been proved by the evidence, was the duty of exercising reasonable care toward the plaintiff. Rea- sonable care in law means such care as would be used by a rea- sonably prudent man placed in a situation similar to that in which these parties were placed ; and the same degree of reasonable care the law requires of each of them.* (4) The court instructs the jury that negligence is defined to be the want of ordinary care ; that is, such care as an ordinarily prudent person would exercise under like circumstances. There is no precise definition of ordinary care, but it may be said that it is such care as an ordinarily prudent person would exercise under like circumstances and should be proportioned to the dan- ger and peril reasonably to be apprehended from a lack of proper prudence. ° (5) The court instructs the jury that negligence is the omis- sion to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a prudent and rea- sonable man would not do." 'Dunbar v. Jones (Conn.), 87 Atl. 'Ferryman v. Chicago City R. Co., 787. 242 111. 269, 89 N. E. 980; Chicago "Hill V. Glenwood, 124 Iowa 479, &c. R. Co. v. Johnson, 103 111. 512; 100 N. W. 522. Wolff Mfg. Co. v. Wilson, 152 111. 9, 781 NEGLIGENCE. § 70O (6) The court instructs the jury that negligence is the fail- ure to exercise such care as is ordinarily exercised by careful and prudent persons under the same or similar circumstances in the same or similar business.' (7) The court instructs the jury that negligence, as used in the first instruction, means the failure to exercise such care as ordinarily prudent persons exercise under like or similar cir- cumstances.' (8) The court instructs the jury that negligence is the want of ordinary care, and ordinary care is that degree of care which ought reasonably to be expected from a person of ordinary pru- dence, in view of all the circumstances developed in evidence. If either defendant failed to exercise ordinary care in placing and maintaining said pile of cinders in question, then it was guilty of negligence.' (9) The court instructs the jury that the words "carelessly," "negligently," and "negligence," used in the instruction, mean the lack of such care and caution as reasonable and prudent men would exercise under like circumstances.^" (id) The court mstructs the jury that by the utmost prac- ticable human skill, diligence, and foresight used in these in- structions, is meant such skill, diligence, and foresight as is ex- ercised by reasonably cautious persons under like circumstances." (11) The court instructs the jury that negligence simply means want of due care. That is a very short definition. If you weigh each word, you will find that that contains the whole doc- trine, — want of due care ; not simply want of care, but want of due care. From its very nature, negligence may consist in the doing of something which should not have been done. Negli- gence may also consist in leaving undone that which ought to 38 N. E. 694, 26 L. R. A. 229; Pitts- Shrader, 26 Ky. L. 206, 80 S. W. 1094. burg &c. R. Co. V. Callaghan, 157 111. See also Anderson v. Union Terminal 406, 41 N. E. 909. For similar in- R. Co., 161 Mo. 411, 61 S. W. 874. struction, see Reiter-Connolly Mfg. "Anderson v. Union Terminal R. Co. V. Hamlin, 144 Ala. 192, 40 So. Co., 161 Mo. 411, 61 S. W. 874. 280- "Eichorn v. Missouri &c. R. Co., ' Louisville &c. R. Co. v. Carter 130 Mo. S7S, 32 S. W. 993. (Ky.), 112 S. W. 904. "Feary v. Metropolitan St. R. Co., 'Kentucky &c. Bridge & R. Co. v. 162 Mo. 75, 62 S. W. 452. § 700 INSTRUCTIONS FORMS. 782 have been done. It may, therefore, be a fault of omission as well as a fault of commission. (It is impossible for the court to fur- nish a jury with a hard and fast measure of care, the presence of which, or the exercise of which, would drive away the idea of neg- ligence, the absence of which would mean the presence of negli- gence. There is no such hard and fast rule which can be applied by a jury like a foot rule or a bushel measure ; but there is a gen- eral principle which underlies the doctrine of negligence, and shows sufficiently clearly the measure of care proper in each par- ticular case, and it is this : The greater the probability of dan- ger in the particular circumstances, the greater is the required de- gree of care, because the measure of care naturally varies in the different circumstances. For example, a man cutting wood with an ax must exercise a proper amount of precaution to guard against other people that may be near him; but a man who is blasting rock with dynamite, since there is much greater danger in handling that explosive than in holding an ax, is required to exercise a much greater degree of care. Due care in handling an ax in cutting wood would not be sufficient measure of care in handling dynamite and blasting rock. But this shows you that the jury in each particular case has to establish from the testi- mony in the case exactly the measure of care which should have been exercised under the circumstances, and it is just that amount of care which would or should have been exercised by a man of ordinary intelligence and prudence. Your common sense and in- telligence will guide you, in deciding by the testimony) in the case what amount of care should have been exercised by the rail- way company in the circumstances detailed in the testimony, and also will show you what amount of care should have been exer- cised by B., the plaintiff, under the circumstances detailed, when you are considering the subject of contributory neg- ligence; and I repeat it is just that degree of care which a man of ordinary intelligence, common sense, and prudence should have exercised under the same or similar circumstances; not ab- solute care, not the utmost care to guard against a possible dan- ger, but only reasonable care, due care, that amount of precau- tion proper to guard against the probable danger.^^ " Bodie V. Charleston &c. R. Co., 61 S. Car. 468, 39 S. E. 715. See also 783 NEGLIGENCE. § 702 § 701. Injuries the result of mere accident. — (1) The court instructs the jury that if they behave from the evidence that the injuries sustained by the plaintiff were merely the result of acci- dent, then your verdict will be for defendant.^' (2) The court instructs the jury that even though the plain- tiff, E., was hurt without fault on his part, still under no circum- stances can a verdict be rendered against the defendant, unless the jury find that the train went down the incline by reason of the negligence of defendant's agents, servants, and employes. If the car, by reason of an unavoidable casualty, got from the con- trol of the gripman, then there was no negligence, and your ver- dict must be for the defendant.^* (3) The court instructs the jury that if they believe from the evidence that neither plaintiff nor defendant was guilty of neg- ligence, as defined in other instructions, but that the injuries, if any, sustained by plaintiff were the resuh of an accident, then the jury should find for the defendant/" §702. Gross negligence — Wilful negligence. — (1) The court instructs the jury, that before a party can be said to be guilty of wilful or wanton conduct it must be shown that the person charged therewith was conscious of his conduct, and con- scious, from his knowledge of the existing conditions, that injury would likely or probably result from his conduct, and that, with reckless indifference to consequences, he consciously and inten- tionally did some wrongful act, or omitted some known duty which produced the injury.^^ (2) The court instructs the jury that the statute provides that liability exists only by reason of negHgence or carelessness of the Nesbit V. Crosby, 74 Conn. SS4, 51 St. Louis &c. R. Co. v. Mitchell, Atl. SSO; Citizens' St. R. Co. v. Shep- 25 Tex. Civ. App. 197, 60 S. W. 891; herd, 30 Ind. App. 193, 65 N. E. 765 ; Lieuallen v. Mosgrove, Til Ore. 446, Heinmiller v. Winston, 131 Iowa 32, 61 Pac. 1022; Conner v. Citizens' St. 107 N. W. 1102, 6 L. R. A. (N. S.) R. Co., 146 Ind. 430, 45 N. E. 662. ISO, 117 Am. St. 405; Anderson v. "Feary v. Metropolitan St. R. Co., Union Terminal R. Co., 161 Mo. 411, 162 Mo. 75, 62 S. W. 452. 61 S. W. 874; McCaiifery v. St. Louis "Flaherty v. St. Louis Trans. Co., &c. R. Co., 192 Mo. 144, 90 S. W. 816. 207 Mo. 318, 106 S. W. 15. "Feary v. Metropolitan St. R. Co., "Birmingham R. &c. Power Co. v. 162 Mo. 75, 62 S. W. 452. See also Jackson (Ala.), 63 So. 782. § 702 INSTRUCTIONS FORMS. 784 person or corporation, or of the gross negligence or carelessness of any servant or agent of any person or corporation. You will see that there is a difference. One is the negligence or careless- ness of the corporation itself, and the other is the gross negli- gence or carelessness of the servant or agent. That is not acci- dental, — that is intentional, — ^because there are well-known distinctions between gross negligence and what might be called ordinary negligence, if there is such a thing as ordinary negli- gence. I doubt if there is; but if there is such a thing as ordi- nary negligence it means the absence of ordinary care. That is what that means. Now, gross negligence, if you come to con- sider the gross negligence of any servant or agent of the de- fendant corporation, — if you come to consider the negligence of such a person as that, — then to find the defendant liable on that ground the Electric Light Company, or the other company, by the negligence of its servants or agents, you have got to find gross negligence. That is a very great degree of negligence, — a degree of negligence not amounting to wanton injury exactly, and yet one characterized by an utter disregard of a person's rights or a person's safety ; something that is manifestly gross and ex- treme, amounting to a careless and utter disregard of the rights and safety of another. That would be as near as I could define it. It never has been defined, and I don't know as it ever can be. I have heard attempts made to define gross carelessness, but it means something more than carelessness. That is about all I can -say.^^ (3) The court instructs the jury that negligence which is called wanton is where the person causing the injury at the time sees and knows that the person injured is in a position of peril, and, notwithstanding such knowledge, commits the act causing the injury, though it was in his power to refrain from doing such act.^^ (4) The court instructs the jury that "gross negligence is " Sullivan v. Boston Elec. Light Davis v. Atlanta &c. R. Co., 63 S. Co., 181 Mass. 294, 63 N. E. 904. See Car. 370, 41 S. E. 468. also Illinois Central R. Co. v. Wal- " Souther v. Northwestern Tel. ters, 22 Ky. L. 137, 56 S. W. 706; Exch. Co., 118 Minn. 102, 136 N. W. S71, Ann. Cas. 1913 E, 472. 785 NEGLIGENCE. § 703 sometimes defined as the entire absence of care. Wilful negli- gence is such conduct as shows an intentional disregard of those precautions which a prudent person would exercise. Now, a person may be careless intentionally; may be grossly careless intentionally. On the other hand, he may be wilfully disre- gardful of the care he ought to exercise."^' ( 5 ) The court instructs the jury that taking the phrase "rashly, recklessly or wantonly" as a whole, it means something more than mere inadvertence or inattentiveness or want of ordinary care; it means an indifference to obvious consequences; an in- difference to the rights of others; indifference as to whether an injury to another be done or not, concluding with this general explanatory statement: The wrongful conduct must indicate such disregard of consequences as to evince little short of actual intent to inflict injury, willingness to perpetrate injury or a pur- pose to take known chances of perpetrating an injury, and they must constitute the equivalent, so far as turpitude and conse- quences are concerned, of actual intent and willingness to per- petrate injury.^" §703. Ordinary care. — (1) The court instructs the jury that you fix the standard for reasonable, prudent and cautious men under the circumstances of the case as you find them, ac- cording to your judgment and experience of what that class of men do under these circumstances, and then test the conduct in- volved and try it by that standard; and neither the judge who tries the case nor any other person can supply you with the cri- terion of judgment by any opinion he may have on that subject." (2) The court instructs the jury that in deciding whether one exercises ordinary care, the jury will consider all the facts proved, all the surrounding circumstances, and say whether the conduct of such person was that of a person of ordinary prudence and discretion under such circumstances. In judging whether the defendant was guilty of negligence, his conduct should be considered, not only with reference to the facts of which he had '°Thomasson v. Southern R. Co., ''Grand Trunk R. Co. v. Ives, 144 72 S. Car. 1, 51 S. E. 443. U. S. 408, 12 Sup. Ct. 679, 36 L. ed. '"Barlow v. Foster, 149 Wis. 613, 485. 136 N. W. 822. SO — Branson's Inst. § 703 INSTRUCTIONS FORMS. 786 actual knowledge and to his actual surroundings at that mo- ment, but in view of what was reasonably likely to happen. In the means adopted to prevent the escape of his horse, the defend- ant was not only bound to consider the character and disposition of his horse, and the fact that he was in the public street, but to anticipate what might naturally happen in such a place, the chance of noises and other occurrences at which his horse might be startled and the danger to the persons and property of those passing or who would be likely to be passing or driving in the street, should his horse escape.^^ (3) The court instructs the jury that the care of a prudent man varies according to circumstances, dependent upon the degree of danger. What is the precise legal intent of the term "ordinary care" must, in the nature of things, depend upon the circum- stances of each individual case. It is a relative, and not ab- solute, term. The degree of care and foresight which is neces- sary to. use in any given case must always be in proportion to the nature and magnitude of the injuries which will be likely to result from the occurrence which is to be anticipated and guarded against.^^ (4) The court instructs the jury that ordinary care is such care as a person of ordinary prudence would usually exercise un- der the same or similar circumstances.^* (5) The court instructs the jury that ordinary care is such care as ordinarily careful and prudent persons ordinarily exer- cise under the same or similar circumstances, in the same or sim- ilar business.^^ (6) The court instructs the jury that the degree of care to be exercised by plaintiff and defendant was exactly the same. The plaintiff was bound to exercise ordinary care to avoid being injured; and the defendant was bound to exercise ordinary care to avoid injuring plaintiff, and by "ordinary care," as used in these instructions, is meant such care as would be exercised by '"Dexter v. McCready, 54 Conn. 144 Ky. 206, 138 S. W. 2SS. For sim- 171, 5 Atl. 8SS. ilar instruction, see Wright v. Kansas "= Savannah Elec. Co. v. Bell, 124 City, 187 Mo. 678, 86 S. W. 452. Ga. 663, S3 S. E. 109. "^ Louisville &c. R. Co. v. Carter ^ Madisonville &c. R. Co. v. Wiar, (Ky.), 112 S. W. 904, 787 NEGLIGENCE. § 704 an ordinarily careful and prudent person, under the same or similar circumstances.^' (7) The court instructs the jury that what constitutes "ordi- nary care" as mentioned in these instructions depends on the facts of each particular case. It is such care as a person of ordinary prudence would exercise (according to the usual and general ex- perience of mankind) in the same situation and circumstances as those of the person or persons in this case with reference to whom the term "ordinary care" is used in these instructions. The omission of such care is negligence in the sense in which that word is used in these instructions.^* (8) The court instructs the jury that if defendant's servants and employes exercised all the care and foresight that was rea- sonably practicable, then there was no negligence, and, in de- termining any issue as to negligence on defendant's part submit- ted to you in these instructions, you are instructed that, if there was exercised all the care that was reasonably practicable, then there was no negligence.^' (9) The couit instructs the jury that by the terms "ordinary care," "ordinary skill," and "ordinary diligence," as same may be used in this charge, is meant that degree of care, skill, and dili- gence, respectively, that an ordinarily prudent person would use in the transaction of his own business under like or similar cir- cumstances.^" § 704. Care to avoid injury to infants. — The court instructs the jury that if you believe from the evidence that the plaintiff H. J. went into the defendant's seed house with the knowledge and by permission of defendant's employes working in said seed house and about the machinery therein; and if said employes knew the tender age of said H., and the dangers to which she was exposed in going about said machinery, and failed to warn "Welland v. Metropolitan St. R. Chase v. Blodgett Mill. Co., Ill Wis. Co., 144 Mo. App. 205, 120 S. W. 655, 87 N. W. 826; Savannah Elec. '''*1. Co. V. Bell, 124 Ga. 663, S3 S. E. 109; "Sack V. St. Louis Car Co., 112 Bodie v. Charleston &c. R. Co., 61 S. Mo. App. 476, 87 S. W. 79. Car. 468, 39 S. E. 715. ^ Feary v. Metropolitan St. R. Co., " Guitar v. Randel (Tex. Civ. 162 Mo. 75, 62 S. W. 452. See also App.), 147 S. W. 642. § 705 INSTRUCTIONS FORMS. 788 her of such dangers, and knowingly permitted her to go about said machinery; and if in attempting to cross said conveyor in said house the said H. J. was caught in said conveyor, and was thereby injured, as alleged, without fault on her part, — then you should find for the plaintiff H. J.^^ § 705. Joint negligence. — The court instructs the jury that if an accident occurs from two causes, both of which causes are due to the negligence of different persons or corporations, but which two causes together are the efficient cause of the accident or injuries, then all of the persons or corporations whose acts contribute to the accident are liable for an injury resulting from such accident, and the negligence of one furnishes no excuse for the negligence of the other/^ § 706. Proximate cause. — (1) The court instructs the jury that negligence may be the proximate cause of an injury of which it is not the sole or immediate cause. If you find from the evi- dence that defendant was negligent in either particular alleged in the complaint, and that said negligence in that particular concurred with some other cause or causes in bringing about and causing plaintiff's injury, the defendant's said negligence would be a proximate cause within the meaning of that term as used in these instructions.^^ (2) The court instructs the jury that the proximate cause of an injury as the term is used in this charge, in its legal signifi- cation is a cause which in its natural and continuous sequence unbroken by any new cause, produces an event, and without which the event would not have occurred, but in order to war- rant a finding that the negligence is the proximate cause of an injury, it must appear from the evidence that the injury was the natural and probable consequence of the negligence, and "■ Dublin Cotton Oil Co. v. Jarrard °" Southwestern Tel. &c. Co. v. San- (Tex. Civ. App.), 40 S. W. 531. See ders (Tex. Civ. App.), 138 S. W. also Ittner Brick Co. v. KiUian, 67 1181. Nebr. 589, 93 N. W. 951; Cameron == Grand Trunk Western R. Co. v. Mill &c. Co. V. Anderson, 34 Tex. Poole, 175 Ind. 567, 93 N. E. 26. Civ. App. 105, 78 S. W. 8. 789 NEGLIGENCE. § 707 ought to have been foreseen as likely to occur by a person of ordinary prudence in the light of the attending circumstances/* (3) The court instructs the jury that if you should find that the defendant was guilty of negligence, this would not entitle the plaintiff to recover unless such negligence was the cause of plaintiff's injury, if he was injured/^ (4) The court instructs the jury that you can not allow plain- tiff anything for any injury or afflictions that he has, unless you believe from the evidence that they were caused by the negli- gence of the defendant.^" (5) The court instructs the jury that an injury that is not the natural consequence of an act of negligence, and that would not have resulted from it but for the interposition of a new and inde- pendent cause, is not actionable/"* § 707. Care in respect to dangerous premises. — ^The court instructs the jury that the defendant is only held to the exercise of ordinary care and diligence with reference to the coal hole in front of the defendant's premises, into which the plaintiff alleges he fell and by reason of the fall sustained the injuries here sued for. The defendant had a right to use that part of his premises under the sidewalk, provided he exercised due care with reference to people passing over it. The fact that the part of his premises under the sidewalk was a part of the street will not prevent him from using his land, provided he used proper care for the safety of such persons as had occasion to use the sidewalk, and defendant is not to be held responsible merely be- cause of the existence of the coal-hole, nor from the fact that there was an excavation under the sidewalk, but the defendant ''Riley v. Fisher (Tex. Civ. App.), 48 S. E. 139; St. Louis &c. R. Co. v. 146 S. W. 581. Mitchell, 25 Tex. Civ. App. 197, 60 S. "= Missouri &c. R. Co. v. Gist, 31 W. 891. Tex. Cfv. App. 662, 73 S. W. 857. For " Missouri &c. R. Co. v. Gist, 31 other instructions on proximate cause, Tex. Civ. App. 662, 73 S. W. 857. see Conner v. Citizens' St. R. Co., 146 "a Miles v. Postal Tel. Cable Co., Ind. 430, 45 N. E. 662; Godwin v. At- 55 S. Car. 403, 33 S. E. 493. lantic Coast Line R. Co., 120 Ga. 747, § 708 INSTRUCTIONS FORMS. 79O is held responsible for such care as should be exercised under the circumstances.^' § 708. Dangerous excavations. — The court instructs the jury that if they believe from the evidence that on or prior to the day of , , the defendant had made an excava- tion in avenue, in the city of , at or near the place where the defendant's street car tracks cross a steam railroad track; that such excavation wras such as to be unsafe or dan- gerous to passers-by at said point in the nighttime; that on the night of said day the defendant left said excavation open, and unguarded by any barriers, light, or signal to warn travelers of the presence of such excavation, and that on said night the plaintiff, when passing fell into said excavation, and sustained the injuries complained of in her complaint ; and if you further find from the evidence that the plaintiff was not guilty of any negligence on her part which proximately contributed to her said injuries — then plaintiff would be entitled to recover, and your verdict should be in her favor.^' § 709. Dangerous machinery. — The court instructs the jury that it was the duty of the defendant, in the location, con- struction, and operation of its machinery, to exercise such pru- dence and care to prevent injury therefrom as an ordinarily prudent man would exercise ; and in determining such negligence they should consider how the defendant's seed house and ma- chinery were located, constructed, and operated, what precau- tions were used to prevent persons from going about or coming in contact with said machinery, and the duty of said employes in said seed house in charge of said machinery.^^ § 710. Recovery limited to negligence alleged in pleadings. — (i) The court instructs the jury that the plaintiffs can not recover against the defendant unless you believe from the evi- " Stevenson v. Joy, 1S2 Mass. 45, (Tex. Civ. App.), 40 S. W. 531. See 25 N. E. 78. also Ittner Brick Co. v. Killian, Q "Indianapolis St. R. Co. v. James, Nebr. 589, 93 N. W. 951; Cameron 35 Ind. App. 543, 74 N. E. 536. Mill &c. Co. v. Anderson, 34 Tex. =° Dublin Cotton Oil Co. v. Jarrard Civ. App. 105, 78 S. W. 8. 791 NEGLIGENCE. § 7IO dence that B. was injured by the negligence of the defendant or its agents in the manner alleged in the declaration. If she was injured in any other manner or from any other cause than from those set out in the declaration, plaintiff can not recover.*" (2) The court instructs the jury that if they believe, from the evidence, that P. P., while in the exercise of ordinary and reasonable care for his own safety, was injured by and in con- sequence of the negligence of the defendant, as charged in the first, third, fourth or sixth counts of the declaration, then the jury should find the defendant guilty.*^ (3) The court instructs the jury that, unless, however, you shall believe from the evidence in this case that said house was caused to fall down on account of defects in said front, or on account of defects in the material thereof, then the law is for the defendant ; or if you shall believe from the evidence that said building was caused to fall down on account of any other cause than by reason of defects in said iron front or in the material thereof, the law is for the defendant, and you will so find.*^ (4) The court instructs the jury that, as a matter of course, the plaintiff can not recover if he suffered injury from the neg- ligence of the defendant in any other particulars than those specified in the complaint.*^ (5) The court instructs the jury that if you believe from the evidence that the plaintiff is suffering in the respects alleged by him, but if you further believe that his sufferings in such re- spects, if any, were caused by any injuries received by him dur- ing the year , or were caused by rheumatism or kidney trouble, or were received by him on any occasion, or in any man- ner otherwise than through the negligence, if any, of the de- fendant, as alleged by plaintiff in his petition, or if you believe that plaintiff is suffering from hysteria, and that his injuries, if any, exist only as a condition of plaintiff's mind, and that he " Pensacola Elec. Co. v. Bissett, 59 Foundry &c. Co., 28 Ky. L. 383, 89 S. Fla. 360, 52 So. 367. ' W. 265. "Petersen v. Elgin &c. Trac. Co., "Rice v. Lockhart Mills, 75 S. 238 111. 403, 87 N. E. 345. Car. ISO, 55 S. E. 160. "Fraternal Const. Co. v. Jackson §7^^! INSTRUCTIONS FORMS. 792 was not in fact injured, as alleged by plaintiff in his petition, then you will find for the defendant.** §711. Sufficiency of evidence to establish negligence.— (i) The court instructs the jury that the facts necessary to be established by plaintiff by a preponderance of all the evidence, to entitle him to recover, are — First, negligence on the part of . the defendant in the matter complained of; second, plaintiff's freedom from fault or negligence in the matter complained of ; and, third, damage to the plaintiff proximately caused by the defendant's negligence; and a failure to establish any of these by a preponderance of all of the evidence will preclude a re- covery.*^ (2) The court instructs the jury that it is not enough to say or find that there is some evidence of negligence on defendant's part. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, will not war- rant the jury in finding a verdict for the plaintiffs. There must be evidence upon which the jury can reasonably conclude that there was negligence.** § 712. Duty of jury to take into consideration situation of parties. — The court instructs the jury that, in determining the question of negligence in this case, they should take into consideration the situation and conduct of both parties at the time of the alleged injury as disclosed by the evidence, and, if the jury believe from the evidence that the injury complained of was caused by the negligence of the defendant's servants, as charged in the complaint, and the plaintiff acted as was reason- ably to be expected of a person of ordinary care and prudence in the situation in which she found herself placed, then the plaintiff is entitled to recover.*^ § 713. Burden of proof. — (1) The court instructs the jury that while it is true that the burden of proof is on the plaintiff "Missouri &c. R. Co. v. Coker "Curtis v. Detroit &c. R. Co., 27 (Tex. Civ. App.), 143 S. W. 218. Wis. 158. * Baltimore &c. R. Co. v. Young, "' Stephenson v. Southern Pac. Co., 153 Ind. 163, 54 N. E. 791. 102 Cal. 143, 34 Pac. 618. 793 NEGLIGENCE. 8 713 to prove all the allegations of her complaint covering the negli- gence of the defendant and her freedom from negligence, yet it is also true that the weight of evidence is not determined by the number of vsritnesses. Of course, gentlemen, you knov\? that is true. You are at perfect liberty to believe the testimony of one v\^itness against any number. You are to v\^eigh the evi- dence presented, without regard to the number of witnesses who may testify to one particular fact; that is, without being con- trolled by the fact that more witnesses testify to one set of circumstances than to another.*' (2) The court instructs the jury that what the court says in the instructions read by plaintiff's counsel as to the burden being on defendant does not mean that you are confined to the testimony offered by defendant in determining whether the bur- den has been established. You are to consider all the facts and circumstances in evidence, whether developed in the examina- tion of plaintiff's or defendant's witnesses, and, if you find there- from that there was no negligence of the character submitted, then the burden has been sustained by the defendant, and it is entitled to the verdict, even though you find that F. was a pas- senger, and was injured without fault on his part.*^ (3) The court instructs the jury that the charge of negligence made by plaintiff against defendants by this action must be proved to the satisfaction of the jury by the greater weight of the evidence. The jury have no right to presume negligence, and if the evidence does not preponderate in favor of plaintiff, then your verdict should be for defendants." (4) The court instructs the jury that, if the plaintiff fails to establish these facts by a preponderance or greater weight of the evidence — ^that he did suffer injury because of these acts of neg- ligence of the defendant — then he is not entitled to recover.'^ * Dunbar V. Jones (Conn.), 87 Atl. burden of proof rests upon plaintiff '87. to establish such issues." Webb v. *■ Feary v. Metropolitan St. R. Co., Baldwin, 165 Mo. App. 240, 147 S. W. 162 Mo. 75, 62 S. W. 452. 849. For similar instruction, see Heg- " The instruction is not exception- berg v. St. Louis &c. R. Co., 164 Mo. able on the ground that it refers the App. 514, 147 S. W. 192. jury to the pleadings to ascertain the "' Rice v. Lockhart Mills, 75 S. Car. issue. It "simply tells them that the 150, 55 S. E. 160. § 7^4 INSTRUCTIONS FORMS. 794 (S) The court instructs the jury that the burden of proof is on the plaintiff to show that he was injured by the negligence of the defendant, and the burden of proof is on the defendant to show that plaintiff was guilty of negligence in attempting to board' the train at the time and under the circumstances that he did.== § 714. Right of jury to disregard evidence contrary to physical facts. — ^The court instructs the jury that, even though the plaintiff has testified that her injury was received by falling into the hole, yet if you believe such statements are contrary to the physical facts of the same evidence, you must disregard her statements for that reason with reference to her injury.^* '' Missouri &c. R. Co. v. Gist, 31 Connolly v. Des Moines Inv. Co., 130 Tex. Civ. App. 662, 73 S. W. 857. Iowa 633, lOS N. W. 400; Crites v. Burden and presumptions, see Quill New Richmond, 98 Wis. 55, 73 N. W. V. Southern Pac. Co., 140 Cal. 268, 73 322. Pac. 991 ; Ingram v. Hilton &c. Lum- " McClanahan v. St. Louis &CNf o., her Co., 108 Ga. 194, 33 S. E. 961 ; 147 Mo. App. 386, 126 S. W. 535. CHAPTER LXX. NUISANCE. Section Section 715. What constitutes a nuisance. 718. Damages. 716. Persons liable. 719. Criminal prosecutions. 717. Defenses. §715. What constitutes a nuisance. — (1) The court in- structs the jury that the mere fact, if you beheve it to be a fact from the evidence, that odors from the septic tank can be de- tected at times from plaintiff's residence, would not entitle plain- tiff to recover damages.^ (2) The court instructs the jury that whatever is openly in- jurious to public health and comfort is a nuisance.^ (3) The court instructs the jury that whether the act com- plained of is a nuisance to the community is to be determined inferentially from the facts in the case, as well as from the testimony of experts as to the probable operations of the con- stituents of which the nuisance is composed, or the health or comfort of the community.* (4) The court instructs the jury as a matter of law, that it is not necessary that all the members of a community should be affected by the nuisance, nor is it a defense that there were some persons by whom the nuisance was approved.* (5) The court instructs the jury that it was the duty of the defendant to stop the use of the sewer whenever, from any cause, it became so out of repair as to cast filth and foul water of a noxious and dangerous character upon the premises of the per- sons residing along its route, and until the same could be re- ^Murkerson v. Adler (Ala.), 59 So. °West v. State, 71 Ark. 144, 71 S. S05. W. 483. 'West V. State, 71 Ark. 144, 71 S. 'West v. State, 71 Ark. 144, 71 S. W. 483. W. 483. 795 § 7l6 INSTRUCTIONS FORMS. 796 paired and put in good order; and if the jury shall believe from the evidence that the sewer was out of repair from time to time during, say two or three years before the institution of this suit, and that the defendant continued to use it when so out of repair or in damaged condition, fihh and foul water of a noxious and dangerous character were thrown upon and around the premises, then he is entitled to recover such sum as would compensate him for the injury sustained by him.^ (6) The court instructs the jury that a nuisance is anything that works hurt, inconvenience, or damage to another, either in his person or property." §716. Persons liable. — (1) The court instructs the jury that if they find from the evidence in this case that defendants in any way participated in the maintenance of the purification plant in question during the year next preceding the filing the suit, even though it be through defendant's lessees, L. and R. H., and further find that foul and offensive odors and smells emanated from the same during the year next preceding the filing of this suit that rendered the occupancy of plaintiff's property unpleas- ant and uncomfortable as a home for himself and his family, though it may have been so only at intervals, then your verdict should be for the plaintiff.' (2) The court instructs the jury that the defendant is liable only for its own acts, and not for the acts of other persons resid- ing in the vicinity, and you will not find for plaintifif any- thing by reason of the condition of the other premises adjacent to plaintiff's property.® §717. Defenses. — The court instructs the jury that the fact that the defendants paid the county or the J. county sani- tary commission the cost of the septic tank, if you believe from "Adams Hotel Co. v. Cobb, 3 Ind. Co. (Tex. Civ. App.), 44 S. W. 588. T. SO, S3 S. W. 478. See also Gavigan v. Atlantic Refining " Comminge v. Stevenson, 76 Tex. Co., 186 Pa. 604, 40 Atl. 834 ; Chesa- 642, 13 S. W. SS6. peake &c. R. Co. v. Whitlow, 104 Va. 'Jones V. Adler (Ala.), 62 So. W. 90, 51 S. E. 182. ° Brennan v. Corsicana Cotton-Oil 797 NUISANCE. § 718 the evidence that they did so, would not of itself render de- fendants liable to plaintiff for any injury which he may have sustained from this maintenance, if you believe from the evi- dence he has sustained such injury.^ § 718. Damages. — (1) The court instructs the jury that if they shall further find that any of the plaintiff's children in his own home and under his control were made sick from the filth and foul water cast upon his premises, then they may consider, in fixing the amount of their verdict, any money expended by him in their proper medical care and treatment, and also the damage, if any, which he may have sustained by reason of the loss of the services of any of them during the period of their sickness, if they were of sufficient age and capable of rendering any service to him or the family when in a state of health ; and the court instructs the jury that the services of a child are, no more than the services of the wife, to be estimated by the merely physical and gross standard. If the jury also find that the wife of the plaintiff was made sick by reason of the filth and foul water cast upon his premises, then in assessing the amount of damages which would compensate the plaintiff in this case it is proper for them to consider the loss of the society and the serv- ices of his wife during the period of her sickness, if any, and also any sums of money he may have expended in the proper care and attendance upon her during her sickness, and the court instructs the jury in this connection, that a wife's services to her husband are not to be valued as the services of a mere hireling. The frugality, industry, usefulness, attention, and tender solici- tude of a wife and the mother of children make her services greater than those of an ordinary servant, and therefore worth more; and those elements should be considered, so far as the evidence discloses them, in making a money estimate of the value of her services, and in this case the loss of services of the wife must be confined to the three months in the fall of 1893.^" (2) The court instructs the jury that if you believe from the evidence that plaintiffs' property was damaged, but that it was "Murkerson v. Adler (Ala.), 59 So. "Adams Hotel Co. v. Cobb, 3 Ind. SOS. T. SO, S3 S. W. 478. § 7^9 INSTRUCTIONS FORMS. 798 SO slight as to be merely trivial so as not to affect the market value of the property, then in that event you will find for the defendants ; or if you believe from the evidence that the property of the plaintiffs was damaged, but that said damage was caused alone by the railroad trains, the canning factory, from dust from the streets; or from the vats or the smell from the sewer sys- tem, or that said damage caused by these other things men- tioned above was increased and added to by said gin, but that said increase, if any, was so slight as to be trivial, and that it did not affect the market value of said property, and did not create a nuisance, then in either event you will find for the defendants/^ (3) The court instructs the jury that if you believe from the evidence that the defendants constructed and operated their gin in the town of • in such close proximity to the plaintiffs' houses or either of them as to cause the dust, lint cotton, offensive odors, noises, or smoke to escape from said gin, and that they or either of them was carried by the wind into the plaintiffs' resi- dences, or either of them, if such was the facts, and thereby caused injury to either of the plaintiffs as alleged in their pe- tition so as to come within the definition of a nuisance, as here- inbefore defined and explained, and that the reasonable market value of said property of the plaintiffs immediately upon the erection of said gin was reduced by the building thereof, con- sidering the reasonable market value of said places or either of them, immediately after the erection and operation of said gin, then you will find for the plaintiffs such sum of money as under all the facts and circumstances shown by the evidence as rep- resents the difference, if any, between the market value of said property immediately before the building of said gin and the reasonable market value after said gin was constructed and in operation/'^ § 719. Criminal prosecutions. — (1) The court instructs the jury that the nuisance must be in a populous neighborhood, or in a place sufficiently contiguous to a public highway to affect " Hunt V. Johnson (Tex. Civ. "a Hunt v. Johnson (Tex. Civ. App.), 141 S. W. 1060. App.), 141 S. W. 1060. 799 NUISANCE. § 719 persons passing and repassing. In other words, a nuisance, to be indictable, must have within its range either the community generally or those persons passing and repassing on a public road. It is not necessary, in order to make an alleged nuisance to be indictable, that it should be detrimental to the public health. It is sufficient for this purpose if it be generally offensive to the sense of smell so far as concerns the public at large, or if in any other way it produces general physical discomfort. ^^ (2) The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the defendant, as charged in the indictment, did suffer the carcasses of dead hogs, offal, or other noisome substances, to be collected or remain near the dwelling houses of the persons named in the indictment, to their physical prejudice or the physical discomfort of other per- sons in that vicinity abiding, as charged in the indictment, then they are instructed that it is no defense in this case that the defendant rendered the hogs brought to his tank as soon after they were brought there as was possible with his capacity for that work ; nor is it any defense that said business, as carried on, was a benefit to a certain class of the community; nor is it a defense that parties took dead hogs to said tank, to be rendered, whether witnesses in this case or not.^^ (3) The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt, that the de- fendant, within eighteen months prior to the finding of the in- dictment in the case at the county of W., did suffer or cause the carcasses of dead animals and offal and other noisome sub- stances to be collected near the dwelling houses of the persons named in the indictment, to their prejudice, and in such manner as to interfere physically with their ordinary comfort, then the jury are instructed, that it is not necessary for the people to prove a criminal intent on the part of the defendant. If the act is proved beyond a reasonable doubt, as charged, the jury will be warranted in finding the defendant guilty." "West V. state, 71 Ark. 144, 71 S. " Seacord v. People, 121 111. 623, 13 W. 483. N. E. 194. "^ Seacord v. People, 121 111. 623, 13 N. E. 194. § 719 INSTRUCTIONS FORMS. 80O (4) The court instructs the jury that if you find, from the evidence beyond a reasonable doubt that the defendant wilfully and unlawfully did create, commit, and maintain a public nuisance by building and maintaining a pond in and about the town of wherein is drained and retained its washings and filth from a part of said town, endangering the public health, and if said pond is so constructed and maintained that it will, in the regular course of events, be likely to generate disease or communicate infection, to the detriment and annoyance of the community, then you should convict the defendant/^ "West V. State, 71 Ark. 144, 71 S. W. 483. See also People v. Pelton, 159 N. Y. 537, 53 N. E. 1129. CHAPTER LXXI. OFFICERS. Section Section 720. Conversion of public funds. 722. Wrongful levy on property. 721. Bribery. § 720. Conversion of public funds. — The court instructs the jury as a matter of law that the plaintiff is not bound by the receipt read to you in evidence and the settlement of , , in so far as the matters and things involved in this suit are concerned, and further instruct you that if you shall be- lieve from the evidence that, at the times complained of by plaintiff, the defendant, H. S., while acting as county clerk of county, did issue warrants or orders on the treasurer of said county payable to himself or others without the authority of said county, and without an order of either the fiscal court or county court of said county authorizing the issual and payment of such warrants, and did indorse to others and receive the money and proceeds of such warrants or orders, and did con- vert said money and proceeds of such warrants or orders to his own use, or did change and raise warrants which had been or- dered issued by either of said courts, and did receive and con- vert to his own use so much of said warrants so charged or raised above the amount ordered to be paid on such warrants, if anything, and that the treasurer of said county paid said war- rants, then the law in this case is for the plaintiff, and you will find for it such sums of money as you may believe from the evidence in this case was so converted by said defendant, H. S., but not exceeding the amount claimed in the petition, to wit, $ , with interest from , ; but your finding can only be against defendant surety company if you shall find anything in favor of plaintiff. But unless you shall so believe from the 8oi 51 — Branson's Inst. § 721 INSTRUCTIONS FORMS. 802 evidence in this case, then the law is for the defendant and you will so find.^ § 721. Bribery. — The court instructs the jury that the re- spondent can not be convicted unless you find beyond a reason- able doubt that, at the time claimed by the people, the money was given to S., by or through the agency of the respondent, with the corrupt intention and for the purpose of corrupting him and influencing his official action in issuing fraudulent cer- tificates mentioned in the information. As I said to you before, that must have been the purpose, and whether or not S. ever issued them would make no difference, if he received the money. If he had then said, "I won't issue any certificates," the crime would be just as complete as it would be if he had issued them, if it was paid to him with the corrupt intention of influencing him in his official action.^ § 722. Wrongful levy on property. — The court instructs the jury that if the man in charge of the boat knew that the plaintiff was the owner, or if at that time he was so informed by the plaintiff, and if the custodian then forbade the defendants to take the property in suit, such denial of the plaintiff's right was a denial by the defendants, and amounted to an assertion on their part of the control or dominion over this property, and was* a conversion of it, in the law ; and, if you find that such was the fact, then the plaintiff is entitled to recover of the defendants the full value of his property which was removed by them from the houseboat, unless you are satisfied that at a later date they offered to return to him the property, or offered to permit him to take it, and that it was then in substantially as good condition as it was in just before it was removed from the houseboat.^ ^ Title Guaranty &c. Co. v. Com- 'People v. Gorsline, 132 Mich. 549, monwealth, 146 Ky. 702, 143 S. W. 94 N. W. 16. 401. ■ 'Lucas V. Sheridan, 124 Wis. 567, 102 N. W. 1077. CHAPTER LXXII. PARENT AND CHILD. Section Section 723. Duty of child to care for parent. 726. Presumption of legitimacy of 724. Right of parent to earnings of child. child. 727. Degree of care to be exercised 725. Payment for services rendered by child. parent by child. § 723. Duty of child to care for parent. — The court in- structs the jury that the plaintiff in this case was legally bound to maintain and care for her said mother at her own expense and charge, under the statute of this state, if she was able to do so. I charge you, further, that the defendant is not legally liable to pay for the expense and maintenance of his sister.^ § 724. Right of parent to earnings of child. — ( 1) The court instructs the jury that, while the father is entitled to the earnings of his minor children, unless he consents to their using them, he may relinquish the right to such earnings, and that he has done so may be inferred from his conduct.^ (2) The court instructs the jury that, if they should find from the evidence that J. C. B. was a minor at the time he collected wages due him for work from his father, but that for years he had been permitted to collect and use his own wages, he occu- pied in law the same position as any other creditor to J. M. B., and a payment of his wages to him would not be a reservation for the benefit of J. M. B.^ (3) The court instructs the jury that it is admitted that at ' Howe V. Hyde, 88 Mich. 91, SO N. ' Jackson v. Citizens' Bank &c. Co., W. 102. ■ 53 Fla. 265, 44 So. 516. ^ Jackson v. Citizens' Bank &c. Co., S3 Fla. 265, 44 So. 516. 803 § 7^5 INSTRUCTIONS FORMS. 804 the time the son earned $ , which increased to $ , as he claims, in P., the son was not of age, and that the plaintiff claims that he never gave his son his time, and consequently the plaintiff is entitled to this $ ; while the defendant claims that his father, before he went to P., gave him his time and what he could earn. The earnings of a son before he comes of age belong to the father unless the father has given the son his time and earnings. This question is left for you to determine from the testimony, and should you find the son had been given his time before earning this money he should be allowed for it; but if he had not given him his time, then the son is not entitled to anything for this item.* § 725. Pasmient for services rendered parent by child. — (i) The court instructs the jury that, if plaintiff resided with her father after becoming of age and was treated as a member of his family, then the jury must be satisfied from the evidence that at the time when the services were rendered it was expected by both parties that she should be paid for such services, or that the circumstances under which the services were performed were such that sudh expectation was reasonable and natural ; that if she lived with her father when such services were performed, as his other children did, it is incumbent on the plaintiff to prove an express hiring, or circumstances from which an express hiring may reasonably be inferred, besides the mere fact of performing the services; that the law, while the relation of parent and child exists, raises no implied contract to pay for such services.^ (2) The court instructs the jury that if the plaintiff is the daughter of the defendant, and that fact seems to be undisputed, and if while doing the work, you find she did the work, for which she is claiming pay, she lived and made her home with her father after arriving at the age of majority, and as a member of her father's family, the plaintiff is not entitled to recover anything for such work, unless the evidence in the case shows an agreement or understanding between her and her father that she should have pay therefor. Ordinarily, when one person * Allen V. Allen, 60 Mich. 635, 27 N. ' Miller v. Miller, 16 111. 296. W. 702. 80S PARENT AND CHILD. § 725 does work for another, who knowingly permits the work to be done and receives the benefit, the law raises and implies a con- tract for a fair compensation, but there is no such implied con- tract between father and daughter while living together as mem- bers of one family and one does work for the other. And if such was the relation between these parties while the work was being done, the defendant is not liable, unless there was an agree- ment or understanding between the parties that compensation should be made. It was and is not enough that this plaintiff herself expected or intended to be paid ; the understanding must have been mutual. But by this it is not meant that words must have been uttered or passed between the parties expressing this intention, but besides the mere doing of the work by the daughter for the father, under her father's direction^ if it was so done, there must be proof tending to show, and enough to satisfy your minds of the fact, that there was an understanding between the parties, an expectation of payment by the daughter and an in- tention to pay on the part of the father.* (3) The court instructs the jury that if you should find in this cause that the plaintiff is the daughter of the defendant, and that she, at or about the time alleged in the complaint, went to live with her father, under an agreement and understanding that she should live with her father as a member of his family, and for her services she should have her board and lodging, and also that of her child, and that she should have, in addition, what she could make out of the surplus eggs, and butter, and other truck raised on the farm and no other compensation, and that plaintiff went on under such an agreement and performed the services alleged in the complaint, receiving the surplus eggs and butter and other truck or the proceeds thereof, then and in that case the plaintiff could not recover, receiving her board and lodging and that of her child.'' (4) The court instructs the jury that it is a presumption of law that a father is not bound to pay a daughter, though of age, for work done by her while living at home and as a member ° Story V. Story, 1 Ind. App. 284, 27 ' Story v. Story, 1 Ind. App. 284, 27 N. E. 573. N. E. 573. § 725 INSTRUCTIONS FORMS. 806 of the family; but this presumption may be overcome by proof of an agreement or understanding for compensation, and such understanding may be inferred from the circumstances shown in evidence if the jury deem the inference warranted.^ (5) The court instructs the jury that if the father at the time his daughter, after arriving at majority, was working for him, knew that his daughter was expecting payment for the work so done, and allowed her to continue to work in the belief, without notice that he did not intend to pay, he would be bound to pay. And in this case it is a question of fact for you, in light of all the facts and circumstances in proof, to say whether there was any understanding or agreement between the parties.® (6) The court instructs the jury that if there was an under- standing between the parties [father and daughter] that the work should be paid for, and no agreement as to the amount, you should allow such sum as under the evidence is shown to have been the ordinary and reasonable compensation for such work.^" (7) The court instructs the jury that the relations that exist between these parties are those of father and son, and, as such, they should be considered in this case. During a portion of the running of these accounts the parties were members of the same family, and when this relation exists between parties, father and son, I think, and I concur with defendant's counsel, and charge you, that under such circumstances the law will raise no im- plied promise to pay on the part of either party for those things that the other furnishes him in consequence of that relation, and without any agreement to pay, and that agreement must be positive, and established in court by affirmative testimony in- troduced in court. This principle applies to both plaintiff and defendant, so that should you find that any money or board or work or other things were furnished by either the plaintiff to the defendant, or by the defendant to the plaintiff, in consequence ' Story V. Story, 1 Ind. App. 284, 27 " Story v. Story, 1 Ind. App. 284, 27 N. E. 573. N. E. 573. " Story V. Story, 1 Ind. App. 284, 27 N. E. 573. 807 • PARENT AND CHILD. § 727 of this relationship of father and son, and there is no positive agreement established by positive testimony or circumstantial evidence, or equal testimony to positive testimony, it should be rejected.^^ § 726. Presumption of legitimacy of child. — The court in- structs the jury that the question of the legitimacy of a child is simply a question of fact ; but the law in this state is, for the peace and repose of families and for the good of society, that a child, the issue of a man and woman lawfully married to each other, is presumed to be legitimate. And that presumption pre- vails. It may, however, be rebutted where you bring positive proof to show that the child could not be the lawful child of a man and his wife.^" § 727. Degree of care to be exercised by child. — The court instructs the jury that the rule of law as to negligence in chil- dren is that they are required to exercise only that degree of care and caution which persons of like age, capacity, and ex- perience might be reasonably expected to naturally or ordinarily use in the same situation, and under the like circumstances, pro- vided that the parents or persons having the control of such chil- dren have not been guilty of want of ordinary care in allowing them to be placed in such circumstances.^' "Allen V. Allen, 60 Mich. 635, 27 "Illinois Cent. R. Co. v. Slater, 129 N. W. 702. 111. 91, 21 N. E. 575, 6 L. R. A. 418, 16 " Pooler V. Smith, 73 S. Car. 102, Am. St. 242. 52 S. E. 967. CHAPTER LXXIII. PARTNERSHIP. Section Section 728. Partnership agreement. 733. Replevin of partnership prop- 729. Liability of silent partner. erty. 730. Breach of agreement of sale of 734. Retirement of partner. partnership business. 735. Dissolution. 731. Business in which partnership 736. Authority of partners after dis- may engage. solution. 732. Transactions between decedent and firm of which plaintiff is member. §728. Partnership agreement. — (1) The court instructs the jury that, in order to constitute and form a contract of part- nership there must be a valid agreement to enter into a partner- ship, and this agreement or contract must be executed. A mere understanding or agreement between two or more persons that they will at some future time enter into or foi-m a partnership will not of itself constitute a partnership.^ (2) The court instructs the jury that an express agreement on the part of the plaintiffs to discharge the defendant A. from the debt sued on and hold the defendant B. as the sole debtor thereon is not necessary in order to justify you in finding that such agreement existed. If, from all the circumstances in the case, and from all the evidence adduced upon the trial hereof, such agreement reasonably appears, you have a right to draw the inference that such agreement actually existed, and find accord- ingly.^ (3) The court instructs the jury that if you believe from the evidence that the defendants, W. A. B. and W. P. H., entered 'Dupuy V. Dawson (Tex. Civ. 'Jones v. Austin, 26 Ind. App. 399, App.), 147 S. W. 698. 59 N. E. 1082. 808 809 PARTNERSHIP. § 728 into a contract of copartnership, and, as partners, agreed to, and did, purchase the interest of plaintiff, in the magazine, "Mis- tress of the Manse," and agreed to pay plaintiff the amount of money he had expended with reference thereto, in instalments, at one and two years, and that, in pursuance to said contract, it was agreed between defendants that defendant B. should sub- mit the agreement defendants had made to the plaintiff for his acceptance or rejection, and you shall further believe that, in pursuance to the agreement between the defendants, said agree- ment, or the terms thereof, was submitted to the plaintiff by defendant B., and that the plaintiff accepted same, you will find for the plaintiff the one-half of the money he has invested in the magazine, to wit, the sum of $ , with interest thereon from , , until paid; and, unless you so believe, you will find for defendants.^ (4) The court instructs the jury that unless you believe that a partnership was entered into and existed between defendants B. and H., at the time the contract with the plaintiff is alleged to have been made, you will find f6r the defendants.** (5) The court instructs the jury that the construction of all written instruments is for the court, and not the jury, because it is not a fact to be passed on by the jury. The writing shows for itself. It therefore becomes my duty to give a construction to be placed upon that paper. The contention of the defendants is that this was such an instrument as dissolved the partnership at that time, so that the partnership did not continue after the day of . They say, further, the partnership being dis- solved by reason of that paper, or whatever occurred, that S., Sr., could not bind the firm by the employment of his son to look after the business at the quarry. It is true that one partner may by certain conveyances dissolve a partnership. If, for in- stance, he assigns all the property and effects of the partnership for the benefit of the creditors, it dissolves the partnership, be- cause all the property is swallowed up. But a partner may sell property to pay debts. Any one partner may sell the personal ' Borum v. Allen, 27 Ky. L. 262, 84 * Borum v. Allen, 27 Ky L 26^ 84 S. W.760. S. W.760. ' "" § 7^9 INSTRUCTIONS FORMS. 8lO property of the firm to pay debts, and he may pledge the prop- erty of the firm to pay debts, and by so doing the partnership is not dissolved. So I instruct you, as a matter of law, that this trust mortgage, being a mortgage simply, did not, in and of itself, dissolve the partnership, but the partnership continued Notwithstanding. ^ § 729. Liability of silent partner. — (1) The court instructs the jury upon the question of partnership : First. You will re- member the testimony of M. himself, and I take it that that will be conclusive in this case as far as he is concerned, — conclusive against him, at least. If you shall find from the evidence that a partnership had existed between S. and M. ; that M. was a silent partner, and that he was furnishing the money for the partner- ship business, and that the people knew that he was a silent part- ner, and that it was known generally that he was a partner when this transaction was had; and that he afterwards imdertook to dissolve that partnership in the way that he has testified ; if he did it secretly ; i^he did it without letting the public know that he was no longer a partner ; and that it was understood between him and S. that S. was still to use the old name in running on the busi- ness, — then the court instructs you that, as far as these plaintiffs are concerned in this case, he is bound by the acts of his old part- ner, S., to the same extent as if he was an actual partner at the time these goods were levied upon and sold. All of the testi- mony is one way with regard to his situation in this matter, and the court instructs you that, if the other particulars are sufficiently and properly made out in accordance with the instructions that I shall give you further on, M. would be liable with the others; that is, if you find for the plaintiff in this case, the judgment will go against M. as well as the other defendants, and in the form of your verdict you will make no distinction as to him, but simply find a verdict for the plaintiffs against the defend- ants." (2) The court instructs the jury that if they believe from the evidence that B. & M. entered into a partnership. He (B.) " Smith V. Smith, 93 Maine 253, 44 ° Shapard Groc. Co. v. Hynes, 3 Atl. 90S. Ind. T. 74, S3 S. W. 486. 8ll PARTNERSHIP. §732 being a silent partner, and that B. ordered the goods in ques- tion, and that plaintiffs shipped the same to defendant M., and they were received by him in O., then he is liable for the same ; and, so far as the plaintiffs are concerned, it is immaterial what disposition either B. or M. made of the goods after said goods were received in O.^ § 730. Breach of agreement of sale of partnership business. — The court instructs the jury that if they believe frorn the evidence that defendant between the of , 19 — , and the of , 19 — , directly or indirectly, either in his own name or in the name of B., or F. & B., engaged in the saloon business in T., they should find for plaintiff in damages, and in estimating such damages they should find such sum as will fairly compensate plaintiff for the loss of profits and good will of the business sold him as naturally and necessarily resulted from defendant's breach of his contract, if any proved, not to exceed, however, three thousand dollars.^ § 731. Business in which partnership may engage. — ^The court instructs the jury that a partnership, as such, may engage in a transaction outside of its regular business, if all the part- ners agree thereto; and, if they do so engage in other transac- tions, the acts of one partner, done in respect to such transac- tion, will bind the firm; and, if you believe from the evidence that said F., M. & H. were partners, and that the purpose of the partnership was to buy and sell cattle, yet, if you believe from the evidence that said F. and H. authorized said M. to sign the firm name to this bond sued on, then each of them so agree- ing to the signing of the same would be bound by the acts of said M.» § 732. Transactions between decedent and firm of which plaintiff is member. — The court instructs the jury that if you find that any item charged in the plaintiff's claim herein is the ' Maurer v. Midmay, 25 Nebr. S7S, " Fore v. Hittson, 70 Tex. S17, 8 S. 41 N. W. 39S. W. 292. 'Downs V. Woodson, 25 Ky. L. 566, 76 S. W. 152. § 733 INSTRUCTIONS FORMS. 8l2 same or any part of any transaction had between the decedent and any firm of which plaintiff was a partner, and that such transaction was a part of the firm business, the plaintiff can not recover for the same in this action/" § 733. Replevin of partnership property. — The court in- structs the jury that if they believe, from the evidence, that, at the time the property replevied in this case was replevied, it was ownqd by both the plaintiff and defendant as partnership prop- erty, the jury will find the issues for the defendant.^^ § 734. Retirement of partner. — ( 1 ) The court instructs the jury that if they believe from the evidence that the witness, J. M. M., and the defendant carried on business in the city of B., at a certain store-room on street, prior to the month of , in the year , or thereabouts, and that the defendant then retired from said store and business and came to H. to reside and carry on business there on his own account, and that he has so carried on business at the latter place constantly since that time and until the present; and also that when he left B., in the year , he left the goods then on hand, with all of the accounts and assets of the concern, in the hands of said witness to sell and close out the same, and to collect the debts owing to the firm, and therewith to pay off all debts of the firm then existing ; and that said goods were sold out by said witness prior to the month of , in the year , or about that time, and the store-room aforesaid closed or put into the possession of other parties for other business, and the sign of said firm taken down, and that the said witness thereupon went into other employments and has so continued to the present; and if the jury believe also that the plaintiff and her husband were informed, in the year or thereabouts, of the fact that said place of business had been closed and had not been resumed there or elsewhere, and that the defendant removed to H. in the spring of the year and commenced business on his own account and has continued the same ever since, then the jury may infer from these facts "Shirts V. Rooker, 21 Ind. App. "Reynolds v. McCormick, 62 111. 420, 52 N. E. 629. 412. 8l3 PARTNERSHIP. § 735 that said firm had been dissolved and that the plaintiff knew it when said note was given/^ (2) The court instructs the jury that if you believe from the evidence that the defendant C. G. M. was for some time prior to and until the day of , , a partner with the de- fendant S. S. S., doing business under the name of Gro- cery Company, and that on the day of , , the said M. retired from said partnership, and was not in fact a member of the firm at the time the property in controversy was seized, yet if you believe that the said M. intentionally con- cealed from the public his retirement from said firm until after the property in controversy was seized, and after this suit was filed, and if you further find that plaintiffs at the time said property was taken, and at the time this suit was filed, had knowl- edge that the said M. had, prior t6 the time of the seizure of said property and the "filing of this suit, been a member of said firm, then the said M. is estopped from denying in this action that he was a member of said firm of Grocery Company.^^ (3) The court instructs the jury that, before you can find for the plaintiffs in this case, you must find that this property be- longed to the plaintiffs; that it was theirs; that they had title to it, or, if they did not have absolute title to it by virtue of this bill of sale, that they held a mortgage which was recorded in T. ; and that, if they held by virtue of a mortgage, the de- fendants at the time of the levy of the attachment had actual knowledge of the fact." § 735. Dissolution.— The court instructs the jury that it is claimed that S., the partner, said to W., that the partnership was " This instruction, grouping a num- them. * * ♦ jj ^ggg ^^^ assert as a ber of facts together and informing conclusion that the defendant is enti- the jury that if such facts are found tied to the verdict, nor is it imperative to be established the jury may infer or mandatory upon the jury requiring "that the firm had been dissolved, and them to iind the conclusion from the the plaintiff knew it, when the note facts stated." Newman v. McComas, was given," was held to be unobjec- 43 Md. 70. tionable. "Unquestionably," says the "Shapard Groc. Co. v. Hynes, 3 reviewing court, "the facts therein Ind. T. 74, S3 S. W. 486. stated, if found by the jury, would " Shapard Groc. Co. v. Hynes, 3 authorize them to draw the inference Ind. T. 74, S3 S. W. 486. of fact sought to be deduced from § 73^ INSTRUCTIONS — FORMS. 814 dissolved.' When there is a partnership at will, no time being named, one partner may dissolve the partnership (that is, give notice of the dissolution of the partnership), and the partnership, except so far as may be necessary to wind up the business, is dissolved. But there must be a distinct notice of dissolution. It must be a notice to the other partner which is certain, — ^not left to conjecture. Now, my recollection of the testimony is that S., the elder, testified that he said to W. that the partner- ship was dissolved by reason of this trust mortgage. And I instruct you that the trust mortgage did not of itself dissolve the partnership. The question as to whether what was said and done afterwards amounted to a dissolution of the firm is a question of fact for you to determine, and, in determining that, you will remember what the testimony is as to what was said between the parties.^^ § 736. Authority of partners after dissolution. — The court instructs the jury that if S., the plaintiff, was there in charge of the quarry under his father, and with the knowledge and con- sent of W., that he is entitled to recover compensation for what he did there; and, even though the partnership had been dis- solved, he would recover such compensation, because, while, after the dissolution of the partnership, the authority of partners as agents for one another ceases, in a general way, so far as the transaction of the business of the firm is concerned, yet it con- tinues so far and so long as may be necessary for the winding up' of the affairs of the partnership, and of caring for, preserv- ing, and disposing of the property ; and for those purposes (the care of the property, the disposition of the property, and the winding up of the partnership affairs) the agency of one partner for all continues. So that if S., Sr., the partner, did in fact employ his son to look after the property, in the interest of the partnership, and he performed those duties, then the firm would be liable. He would bind his co-partner so far. He could not bind him generally as a partner, but to the extent of the preser- vation of the property." '= Smith V. Smith, 93 Maine 253, 44 '" Smith v. Smith, 93 Maine 253, 44 Atl. 90S. Atl. 90S. CHAPTER LXXIV. PARTY WALLS. Section 737. Right to protect party wall. § 737. Right to protect party wall. — The court instructs the jury that as a matter of law the plaintiff had no right to go on or touch the portion of said east wall of said building not paid for by her, for the purpose of preventing the same from falling, or for any other purpose.^ •Beidler v. King, 209 111. 302, 70 N. E. 763, 101 Am. St. 246. 8iS CHAPTER LXXV. PAYMENT. Section Section 738. Payment by note or due-bill. 741. Presumption of payment from 739. Payment by check. lapse of time. 740. Establishment of payment by 742. Payment by third person. circumstantial evidence. 743. Recovery back of payments. §738. Payment by note or due-bill. — (1) The court in- structs the jury that the execution of a promissory note or due- bill by one party to another is evidence in law that all prior past- due accounts owing from the payee of the due-bill or note to the maker of the same is settled, without they are excepted.^ (2) The court instructs the jury that if you should find that F. gave to G. Y., during his lifetime, a certain note or due-bill, after the indebtedness sued for is alleged to be due, then that would be presumptive evidence that the debt, if any ever existed, was canceled ; and if you should believe that this presumption has not been rebutted and explained by the facts or circumstances, or the evidence in the case, then you would be authorized to find for the defendants ; it being a matter, however, entirely for you to say as to whether or not, considering the case as a whole, the presumption referred to has been explained or rebutted.^ (3) The court instructs the jury that if they beheve from the evidence that $ was borrowed, and the individual note of J. J. W. was given therefor, and further believe that a credit was given to said W. on the C. T. Company's books for said amount, yet if the jury believe from the evidence that the said money was borrowed for the said C. T. Company, and was used in its busi- ness by its officers having the power and right to control and ^Fletcher v. Young, 10 Ga. App. ° Fletcher v. Young, 10 Ga. App. 183, IZ S. E. 38. 183, 73 S. E. 38. 816 8l7 PAYMENT. § 741 manage its business affairs, and that by the direction of its said officers it received the full benefit and use of the identical money borrowed, then the indebtedness was in fact the indebtedness of the C. T. Company, and it was lawful for the said C. T. Com- pany to execute its note therefor, and when executed and de- livered, the same would constitute a valid, legal obligation of said company; and it was lawful for said company, by and with the consent of the holder of the said individual note of the said W. to deliver its said note to take up, retire, satisfy, and pay the said individual note of the said W. given to evidence the indebt- edness for said money; and, if said company knowingly and in good faith did so deliver its said note to the holder of said indi- vidual note of the said W., the failure of the said company to charge the account on its books of the said W. with the amount of said note would not of itself invalidate said company's note, or render it accommodation paper.' § 739. Payment by check. — ^The court instructs the jury that if they believe from the evidence that the plaintiff and de- fendant had a settlement of the matters between them on or about , 19 — , and that defendant gave her a check for $ in full payment and settlement thereof, and that plaintiff accepted same in full payment and satisfaction of all demands then existing o between them, the jury will find for defendant.* §740. Establishment of payment by circumstantial evi- dence. — The court instructs the jury that payment may be established by facts and circumstances, without fixing the time and place of payment; the question of payment being determined by you from the facts in the case.^ § 741. Presumption of payment from lapse of time.— The court instructs the jury that the law presumes that after twenty years the purchase-price was paid, if nothing to the contrary be shown to you. If there were any admissions made by the plain- ' Union Nat. Bank v. Post, 192 111. ' Fletcher v. Young, 10 Ga Aon 385, 61 N. E. 507. 183, 73 S. E. 38. ' 'Anderson v. Baird, 19 Ky. L. 444, 40 S. W. 923. 52 — Branson's Inst. § 742 INSTRUCTIONS FORMS. 8l8 tiff in this case, admissions should be scanned with care by the jury. You ascertain if there was any admissions made that the price was not paid, and you decide under the ruling given you whether or not the price was paid.® § 742. Payment by third person. — The court instructs the jury that if you find from the evidence that at the time the bill of sale was made by B. to W. the same was made subject to the $ mortgage, and that it was the intention of B. and W. that said mortgage should be paid by W. as a part of the consideration for which the said bill of sale was made, and you further find that payment of the said $ was in fact made in pursuance of the said intention, said payment, though made by W. will have the same legal effect as if it has been paid personally by B.'' § 743. Recovery back of pa5mients. — The court instructs the jury that the rule in this class of cases is that where a payment of money is made upon an illegal or unjust demand, when the party is advised of all the facts, it can only be considered invol- untary when it is made to promise the release of the person or property of the party from detention, or when the other party is armed with apparent authority to seize upon either, and the pay- ment is made to prevent it. But where the person making the payment can only be reached by a proceeding at law, he is bound to make his defense in the first instance, and he can not postpone the litigation by paying the demand in silence and afterwards suing to recover it back.* ' Patterson v. Campbell, 136 Ga. ' Sieber v. Weiden, l7 Nebr. 582, 24 664, 71 S. E. 1117. N. W. 215. 'Wickwire v. Webster City Sav- ings Bank, 153 Iowa 225, 133 N. W. 100. CHAPTER LXXVI. PHYSICIANS AND SURGEONS. Section Section 744. Duty to file diploma. 750. Physician as expert witness. 745. Contracts for sale of practice. 751. Duty to call physician as witness. 746. What constitutes employment of 752. Use of X-ray machine. physician. 753. Consent to operation. 747. Care and skill to be exercised by 754. Contributory negligence of pa- physician or surgeon. tient. 748. Care to be exercised by special- 755. Matters to be proved in action ists. for malpractice. 749. Meaning of prescription. 756. Damages for malpractice. § 744. Duty to file diploma. — ^The court instructs the jury that an accredited medical college is one which is chartered by the legislature of the state, or its authority, in which such college is situated ; and if you find that before , , defendant did file for record with the clerk of the district court of county a diploma from an accredited medical college, as that term has heretofore been defined, then you will acquit him.^ §745. Contracts for sale of practice. — (1) The court in- structs the jury that if they believe from the evidence that defend- ant entered into an agreement with the plaintiff, on a sufficient consideration, not to practice medicine or surgery within the limits designated in the declaration, and that the contract en- tered into between defendant and plaintiff prohibited the com- pounding of medicine or advising or visiting any person sick or disabled or performing any act by the laws of the state re- quired to be done by a person qualified to practice medicine or surgery and if the jury believe from the evidence that the defend- ant attended with other physicians upon a person in extremis, but charged no fee for this service, and that defendant occasionally ' Aldenhoven v. State, 42 Tex. Cr. 6, 56 S. W. 914. 819 § 746 INSTRUCTIONS — FORMS. 82O recommended certain patent medicines to persons coming to a drug store in which he was interested, the jury are instructed that such acts do not constitute a violation of defendant's agree- ment.^ (2) The court instructs the jury that the language of the con- tract, to wit : "The said C. A. agrees to relinquish his office for the practice of medicine and surgery to the said A. M. W., party of the second part," simply means that he was to vacate said office and leave the same to the use of the defendant, W., if he chose to occupy it, and if the jury believe from the evidence that said A. was able, ready, and willing to so relinquish, then the law is for the plaintiff, and the jury will so find.^ (3) The court instructs the jury that the measure of damages in this cause is the difference between the contract price of $ to be paid plaintiff by defendant, W., under the contract, and the market value of said property at the time of the breach of said contract , •, and when sold by plaintiff in , , not exceeding $ , the amount claimed in the petition.* § 746. What constitutes employment of physician. — The court instructs the jury that the fact that a physician responds to a call for his professional services does not necessarily constitute an employment, unless some act is done or advice given by the physician which indicates an intention on his part to enter upon the employment. He may absolutely refuse this employment, if he sees fit. But when any act is done, or advice given, that may reasonably be construed into indicating an active entering upon the employment, then the liability of the physician attaches, and he may be held responsible for his negligence or lack of skill, as you are elsewhere herein instructed.^ ■^ Greenfield v. Gilman, 140 N. Y. » Miller v. Dumon, 24 Wash. 648, 168, 35 N. E. 435. 64 Pac. 804. Malpractice, see Aspy = Wallingford v. Aitkins, 24 Ky. L. v. Botkins, 160 Ind. 170, 66 N. E. 1995, 72 S. W. 794. See also Mitchell 462; Whitesell v. Hill, 101 Iowa 629, V. Branham, 104 Mo. App. 480. 79 S. 70 N. W. 750; Spaulding v. Bliss, 83 W. 739; Graver v. Acme Harvester Mich. 311, 47 N. W. 210; Beadle v. Co., 209 111. 483, 70 N. E. 1047. Paine, 46 Ore. 424, 80 Pac. 903. * Wallingford v. Aitkins, 24 Ky. L. 199S, 72 S. W. 794. 821 PHYSICIANS AND SURGEONS. § 747 § 747. Care and skill to be exercised by physician or sur- geon. — (1) The court instructs the jury that in considering whether the defendant, in his diagnosis, care and treatment of plaintiff's injured arm, exercised ordinary care and skill, the jury may not set up a standard of their own, but must be guided in that regard solely by the testimony of physicians ; and if they are unable to determine from the testimony of physicians what constitutes ordinary care and skill under the circumstances of this case, then there is a failure of proof upon the only standard for their guidance, and the evidence is insufficient to warrant any verdict for the plaintiff.* (2) The court instructs the jury that if the defendant did possess the skill and learning which ordinarily characterize his profession and failed to exercise it in this case, and in his treat- ment of the plaintiff was careless and negligent, and the plaintiff was injured in consequence thereof, the defendant would be liable for such damages as the plaintiff has sustained/ (3) The court instructs the jury that one who holds himself out to the world as a physician and surgeon impliedly contracts that he possesses the skill properly to practice his specialty. He is bound, therefore, in the discharge of his duties, to use ordinary care, diligence and skill, according to the circumstances of the case.^ (4) The court instructs the jury that the care and skill that a surgeon would use in the practice of his profession should be proportionate to the character of the injury he treats, within the limits of ordinary skill and knowledge, and in the light of the-advanced state of the science at the time of treatment ; and if, under the evidence in this case, under the rule of law, as I have given the same to you, it should appear by the preponderance of the evidence that the defendants, undertaking the care and treatment of plaintiff's arm, did not give to him the ordinary skill and knowledge which is possessed by the average of the profession making a specialty of surgery, then the plaintiff would " McGraw v. Kerr, 23 Colo. App. 132 Pac. 967 (no error when consid- 163, 128 Pac. 870. ered with other instructions given). 'Osborn v. Carey, 24 Idaho 158, ' Sieber v. Weiden, 17 Nebr. 582, 24 N. W. 215. § 748 INSTRUCTIONS FORMS. 822 be entitled to recover some damages at your hands, in case you should find that he had suffered any damages traceable to the fact of the neglect or unskilful treatment on the part of the defend- ants in the treatment of his arm." (5) The court instructs the jury that the degree of care and skill and diligence required of physicians and surgeons is that care, skill, and diligence which is ordinarily possessed by the average members of the profession in good standing in similar localities; regard being had to the state of medical science at that time." (6) The court instructs the jury that the negligence or lack of skill of the defendant is not to be tested by the results of the treatment." (7) The court instructs the jury that a departure from ap- proved methods in general use, if it injures the patient, will render him (the physician) liable, however good his intentions may have been." § 748. Care to be exercised by specialists. — The court in- structs the jury that as to specialists of any department, the rule would be that specialists in the practice of surgery 'are bound to bring to the discharge of their duty in the treatment of plaintiff's arm, as sucH specialists, that degree of care, skill, and knowledge which is ordinarily possessed by practitioners devoting special attention and study to the same branch in similar localities, having regard to the present state of medical science.^' § 749. Meaning of prescription. — The court instructs tlie jury that if the insured went to one of those physicians and re- ceived from him a medicine as a physician, for the purpose of assistance and relief in a difficulty under which he was then = Beadle v. Paine, 46 Ore. 424, 80 "Beadle v. Paine, 46 Ore. 424, 80 Pac. 903. For other instructions on Pac. 903. malpractice, see Gray v. Little, 126 " Sheldon v. Wright, 80 Vt. 298, 67 N. Car. 38S, 35 S. E. 611 ; Allen v. Atl. 807. Voje, 114 Wis. 1, 89 N. W. 924; "^ Allen v. Voje, 114 Wis, 1, 89 N. Spaulding v. Bliss, 83 Mich. 311, 47 W. 924. N. W. 210. " Beadle v. Paine, 46 Ore. 424, 80 Pac. 903. 823 PHYSICIANS AND SURGEONS. §751 suffering or supposed to be suffering, then it is a prescription within the meaning of the law." § 750. Physician as expert witness. — The court instructs the jury that in this case a number of witnesses have been called and testified as medical experts ; that is, they have given you their opinion, based upon hypothetical questions put to them. You will cairefully consider this testimony and give it the weight you think it justly entitled to, taking into consideration the amount of skill and learning possessed by such experts ; also their candor or want of candor upon the witness stand, or the interest mani- fested by them, if any, in the result of the suit. But while it is proper for you to consider this class of evidence and give it such weight as you may think it justly entitled to, still you are not bound to find the facts to be as they have been testified ; but you should consider their evidence and all other evidence in the case, and then give it such weight and credit as you may think it en- titled to receive. The value of such testimony depends upon the circumstances of each case, and of these circumstances the jury must be the judges. When expert witnesses testify to matters of fact, from personal knowledge, then their testimony as to such facts within their personal knowledge should be considered the same as that of any other witnesses who testify from personal knowledge.^' § 751. Duty to call physician as witness. — The court in- structs the jury that it is admitted by the plaintiff that Dr. T. was the physician who treated her for her injuries and that he has been present in this courtroom as witness in this cause, and the plaintiff has failed to introduce him and examine him as to her alleged injuries, and you are authorized in determining the issues " The reviewing court says : "The 176, 26 N. E. 230, 10 L. R. A. 666, 25 definition of a "prescription' was en- Am. St. 619. tirely correct and, even if a word in "Haradon v. Sloan (Iowa), 138 N. common use was explained, there W. SS6 (this instruction did not tell was no reason why the judge should the jury that the value of opinion not define it in answer to the request evidence, based wholly on hypothet- frotn the jury, if he gave the jury an ical questions, depended upon the es- accurate definition." Cobb v. Cove- tablishment of facts assumed, but it nant Mutual Benefit Assn., 153 Mass. was correct as far as it went). § 75^ INSTRUCTIONS FORMS. 824 in this case to take this fact into consideration and give it such weight as you may deem it entitled to receive in determining the seriousness of the injury sustained by plaintiff, if any injury she did receive.^^ § 752. Use of X-ray machine. — The court instructs the jury that it was not negligence of the defendants, or lack of proper skill on their part, for them not to have an X-ray machine, or for them not to use the same in the treatment of plaintiff's arm, unless such machine was usually employed by physicians and surgeons in the same general locality in which the defendants were practicing their profession, or in similar localities.^'' § 753. Consent to operation. — (1) The court instructs the jury that consent to an operation will be presumed from volun- tary submission to it, and the burden is on plaintiff to prove the contrary.^^ (2) The court instructs the jury that the defendant had no right to make any other or different incision in the foot of the plaintiff than defendant had obtained permission or plaintiff had requested him to make.^^ § 754. Contributory negligence of patient. — The court in- structs the jury that if you find that the injury of which plaintiff complains was caused wholly or in part by his own acts or negli- gence, then he can not recover. It is the duty of the patient to observe and follow the reasonable directions of his physician and surgeon. If the patient, after having been treated for some time by the defendants, upon going away from the place where the treatment had been given, was instructed by the defendants to return for further treatment, and was instructed by them in the proper care and use of his arm, and the plaintiff failed or neglected to return for treatment, and used his arm in a different manner than that directed by the defendants, these are facts for " Edwards v. St. Louis &c. R. Co., Aspy v. Botkins, 160 Ind. 170, 66 N. 166 Mo. App. 428, 149 S. W. 321. E. 462. "Beadle v. Paine, 46 Ore. 424, 80 ''Mosslander v. Armstrong, 90 Pac. 903. See also Spaulding v. Nebr. 774, 134 N. W. 922. Bliss, 83 Mich. 311, 47 N. W. 210; '"Mosslander v. Armstrong, 90 Nebr. 774, 134 N. W. 922. 825 PHYSICIANS AND SURGEONS. § 756 you to take into consideration, with the other facts on the case, in determining whether the plaintiff was not negligent.^" § 755. Matters to be proved in action for malpractice. — The court instructs the jury that the burden of proof is upon the plaintiff; and in order that he may recover in this case he must prove, by a preponderance of the evidence, the following: First. That defendant did not, with medical skill and care, prop- erly treat plaintiff for his ailment. Second. That such failure to so treat plaintiff with reasonable and ordinary skill, as defined in these instructions, resulted in the injury complained of. Third. That said alleged injury is due to the lack of ordinary skill and care, and not otherwise. Fourth. That the plaintiff was not guilty of negligence contributing to such injury. And a failure to so establish any of these matters requires that the jury shall find a verdict for the defendant.^^ § 756. Damages for malpractice. — The court instructs the jury that if you find, under the evidence, that the plaintiff is en- titled to recover, it will be your duty to assess the amount of dam- ages which, in your judgment, he should recover under the evi- dence in the case. In estimating this amount you may take into consideration the loss of time occasioned by the immediate effect of the injury complained of. You may further take into con- sideration the physical and mental suffering occasioned by the injury. In addition you may consider the occupation of the plaintiff, and his ability to earn money; and he will be entitled to recover for any permanent reduction in his power to earn money by reason of his injuries. The amounts of these several elements of damages, if any you find, are entirely within your province, having due regard to the obligation of your oath and the duty of reasonable action on your part under that oath. You will, however, bear in mind, gentlemen, that, whatever you find on the question of damages, you can give no damages for any loss =" Beadle v. Paine, 46 Ore. 424, 80 =*Haradon v. Sloan (Iowa), 138 N. Pac. 903. W. 556. § 75^ INSTRUCTIONS FORMS. 826 of time or pain or suffering of the plaintiff prior to the time the plaintiff was attended by the defendant, if you find he was so attended. The damages, if any you find, can not, in all, exceed the sum of dollars." " Miller v. Dutnon, 24 Wash. 648, 64 Pac. 804. CHAPTER LXXVII. PLEDGES. Section Section 757. Notes held as collateral. 759. Ratification of sale of pledged 758. Pledge of corporate stock. property. § 757. Notes held as collateral. — The court instructs the jury that if they believe from the evidence that said C. T. note was a valid obligation of the said C. T. Company, and collectible, and was held by said U. N. Bank or said K. as collateral, then it was the duty of said bank or of the said K., if the jury believe the said $ note had been sold by the said bank to the said K., to hold the said note of the C. T. Company until the matufity of the principal note of $ , and then apply the proceeds thereof to the payment of the said $ note, and pay the residue to the plaintiff; and in such case, although the jury may believe from the evidence that the said C. T. note was of greater value than the note originally deposited as collateral, yet such increase in value, if any inured to the benefit of said P. and his assigns, and said U. N. Bank or said K. were bound to treat the same as if it had been originally deposited by said P. as collateral to said principal note of $ ; and if the jury believe from the evidence that said U. N. Bank or the said K., if the said principal note had been sold to him, did not exercise "ordinary and reasonable care and dihgence in retaining and attempting to collect said C. T. note, and in delivering the same up to the said W. and receiving the note of the said W. in lieu thereof, if they did so deliver up the same, and that loss occurred to the plaintiff by reason thereof, then the defendants, or such one or more of them who partici- pated in such exchange, would be liable to the plaintiff for such loss, and the same may be recovered in this suit. The amount of care and diligence which constitutes ordinary care and dili- 827 § 75^ INSTRUCTIONS FORMS. 828 gence, as above set forth, is that care and diligence which an ordi- narily prudent man usually exercises in his own affairs.^ § 758. Pledge of corporate stock. — (1) The court instructs the jury that where shares of stock in a corporation are pledged as security for the payment of a debt, the pledgee or person hold- ing such stock has a right to surrender the certificate pledged, and have other certificates, for the same amount and number of shares, issued in the name of the pledgee, and where such pledgee is a bank, the certificate may be issued to and held by its cashier ; and if, therefore, you believe from the evidence that the plaintiff by its president or cashier, had agreed to hold said stock as se- curity for the payment of the note sued on, and that it permitted said stock to be surrendered, and other stock certificates issued in the name of said E., yet, if you further believe that such change in form of said stock was made without any intent to use said stock for any other purpose than that for which it was so agreed to be held, the defendant would not thereby be released from lia- bility on said note.^ (2) The court instructs the jury that if you believe from the evidence that the plaintiff without the consent of defendant S. did permit or cause said stock to be suiTendered and other cer- tificates issued to H. C. E. for a different purpose than the secur- ity of the debts for the payment of which it had been so agreed that said stock should be held, then and in that event you should find for said S.^ §759. Ratification of sale of pledged property. — (1) The court instructs the jury that if you find from the evidence that the defendant caused the property pledged to him to be offered for sale at public auction,' but without notice, and if at such sale the property was bid in by the defendant for fair market prices, and that higher prices were not obtainable at the time and place of sale, and if you further find that the plaintiff, upon being in- formed of such sale, made no objection thereto, but commenced ^ Union Nat. Bank v. Post, 192 111. ' Smith v. Traders' Nat. Bank, 82 385, 61 N. E. 507. Tex. 368, 17 S. W. 779. 'Smith V. Traders' Nat. Bank, 82 Tex. 368, 17 S. W. 779. 829 PLEDGES. § 759 to treat with the defendant for the purchase from defendant of a portion of the property, you will find that the plaintiff ratified the sale, and your verdict will be for the defendant.* (2) The court instructs, the jury that if they find from the evidence that prior to day of , H. agreed with F. that the sale should be made without other or further notice to the public, or to him, than such as H. already had, and that F. there- upon caused the sale to be made, and became a purchaser thereat, and that afterwards H., upon being informed of the fact that F. had purchased the property at such sale, did not, within a reason- able time, object to such purchase by F., then you will find that H. ratified the sale, and it thereby became valid and binding, and your verdict will be for the defendant.'^ *Hill V. Finigin, 11 Cal. 267, 19 =Hill v. Finigin, 11 Cal. 267, 19 Pac. 494, 11 Am. St. 279. Pac. 494, 11 Am. St. 279. CHAPTER LXXVIII. PRINCIPAL AND SURETY. Section Section 760. Execution of bond without au- 762. Release of surety. thority. 763. Wife as surety for husband. 761. Extension as consideration. § 760. Execution of bond without authority. — The court instructs the jury that if they believe from the evidence that H. C. P. did not sign the bonds in the notice mentioned, but that his name was signed thereto without his authority, then they must find for the defendant H. C. P., and in coming to a conclusion in this issue the jury must bear in mind that the burden of proof is on the plaintiff.^ § 761. Extension as consideration. — The court instructs the jury that the misappropriation by H. of the proceeds of the check drawn by plaintiff to the order of J. and wife created an obligation on H. to pay to plaintiff the equivalent of said prop- erty on demand, and any extension of time given by plaintiff to H. in the bond sued on for payment of said equivalent is sufficient consideration to uphold said bond; and if the jury believe from the evidence that defendant subscribed his name to said bond, and it was delivered to and accepted by plaintiff in satisfaction of H.'s obligation to it, and H. did not, in twelve months after the execution of said bond, pay off to plaintiff a sum or sums in the aggregate equal to the proceeds of the check aforesaid, they should find for the plaintiff, unless they further believe from the evidence that, after said bond was accepted, the plaintiff re- pudiated it because G. D., or other solvent surety or sureties, had not or did not sign it, or that defendant signed said bond and ' Rocky Mount Loan &c. Co. v. Alteration without knowledge or con- Price, 103 Va. 298, 49 S. E. T!>. Prin- sent of plaintiff, see Conner v. Flesh- cipals or sureties, see Asher v. How- man, 4 W. Va. 693. ard, 33 Ky. L. 696, 110 S. W. 895. 830 831 PRINCIPAL AND SURETY. § 763 delivered it to H. with the condition or undertaking that the names of G. D., or other named person or persons, were also to be signed to said bond as sureties thereon before the same became binding on defendant, and that plaintiff had notice of said con- dition or understanding before it accepted said bond.^ § 762. Release of surety. — (1) The court instructs the jury that after the taking of said mortgage [from V. to plaintiff] the plaintiff could not release any of the property covered by said mortgage, or appropriate it to his own use, or to any other pur- pose, other than in the payment of the claim secured by said mortgage, without releasing U. from liability on said notes to the extent of the value of said property so released or appropri- ated, provided you find that said U. was simply liable as surety pn said notes.' (2) The court instructs the jury that if you find from the testimony that the plaintiff, without the consent of defendant G., agreed with defendant S. to extend the time for the payment of the note herein sued upon for a definite length of time, then you are instructed that said defendant G. was thereby released from such obligation, and you will return your verdict for said defend- ant G. ; but in this connection you are further charged that a mere forbearance upon the part of plaintiff to enforce collection of said note would not amount in law to an extension of the time for the payment of the note.* § 763. Wife as surety for husband. — The court instructs the jury that a wife can not become surety for the husband's debt, either directly or indirectly, and unless you believe that D. C. C. and F. M. C. are partners, your verdict must be for the defendant F. M. C.= 'National Bldg. & Loan Assn. v. Ins. Co. v. Smith, 119 Mich. 171, 11 Day, 23 Ky. L. S99, 63 S. W. 590. N. W. 706; Abel v. Jarratt, 100 Ga. 'De Goey v. Van Wyk, 97 Iowa 732, 28 S. E. 453. 491, 66 N. W. 787. = Compton v. Smith, 120 Ala. 233, "Guerguin v. Boone, ZZ Tex. Civ. 25 So. 300. That position of names App. 622, n S. W. 630. See also on a note is immaterial, see Tram- Caldwell Furnace Foundry Co. v. mell v. Swift Fertilizer Works, 121 Peck- Williamson Heating &c. Co., 27 Ga. 778, 49 S. E. 739. Ohio Cir. Ct. 665; Union Cent. Life CHAPTER LXXIX. RAILROADS. Section 764. Construction of roadbeds so as to divert or interfere with drain- age and flow of water. 765. Liability for injuries based on negligence. 766. Wilful negligence. 767. Care in operation of locomotive or train. 768. Presumption of negligent opera- tion. 769. Proximate cause of injury. 770. Speed of trains. 771. Duty to sound signals. 772. Duty to sound signals — Farm crossings. nZ. Duty to sound signals — Effect of knowledge of approach though no signals sounded. 774. Duty to maintain lookout on ap- proaching train. 775. Duty to station flagmen at cross- ings. n(>. Care toward children on track. m. Relative rights of public and railroad at crossings. 778. Relative rights of public and company on right of way. 779. Relative rights of public and company on tracks laid in streets. 780. Injuries at crossings. 781. Care in running trains at high- way crossings. 782. Care in running trains at street crossings. 783. Violation of law in allowing cars to block crossing. 83 Section 784. Collisions with traction engines at crossings. ,785. Care to be exercised at points where persons may be expected on tracks. 786. Injuries to trespassers on rail- road premises. 787. Injuries to trespassers riding on engines. 788. Injuries to persons loading or unloading cars. 789. Injuries to persons at work on premises of others. 790. Injuries caused by escaping steam. 791. Frightening horses by operation of train. 792. Injuries from mail cranes. 793. Collision between trains at cross- ings. 794. Care after discovery of perilous position of person on track. 795. Right of engineer to assume that person on track will step aside in time to avoid injury. 796. Duty of engineer where signals not heard or heeded. 797. Contributory negligence of in- jured party. 798. Contributory negligence of par- ents. 799. Doctrine of last clear chance. 800. Doctrine of discovered peril. 801. Erroneous action of injured per- son placed in sudden peril. 802. Duty to stop, look and listen. 2 833 RAILROADS. § 764 803. Duty to stop, look and listen — At 809. Presumption that person killed what point duty to be per- on track exercised due care, formed. 810. Evidence as to distance in which 804. Duty to stop, look and listen — train may be stopped. View of crossing obstructed. 811. Damages recoverable for per- 805. Reliance on signals of flagmen sonal injuries. and. crossing watchmen. 812. Killing animals. 806. Reliance on safety gates. 813. Fences and cattle-guards. 807. Crossing between cars in motion. 808. Injuries in jumping on moving cars. § 764. Construction of roadbeds so as to divert or inter- fere with drainage and flow of water. — (1) The court in- structs the jury that if they believe from the evidence that the defendant when it built its raihoad along and near the southern line of the lands formerly owned by H. R. B., and mentioned by the witnesses, so constructed its roadbed as to dam and hold the water back upon said land, and without sufficient openings or waterways to allow the water flowing upon said land to pass off in tirnes of ordinary rainfalls, to the extent it formerly did, to the injury of said land, and that by reason of such fault of the defendant the reasonable market value of said B. tract of land has been diminished to the damage of the plaintiffs, the jury will •find their verdict for the plaintiffs.^ (2) The court instructs the jury that if they believe from the evidence that the defendant in the reconstruction of its roadbed and embankment negligently cut its right of way and removed the earth which naturally formed the bank or banks of a natural stream of water where same crosses said right of way above the lands of plaintiff, so that water which was theretofore carried into a larger stream of water was diverted and caused to flow on to and over the plaintiff's land in larger quantities or with greater force than it did prior to said change, and his land was thereby cut or washed away, they should find for the plaintiff, and fix the recovery as defined in instructions Nos. and } (3) The court instructs the jury that if they believe from the evidence that any of the plaintiffs by their want of ordinary care ' Madisonville &c. R. Co. v. Wiar, "Louisville &c. R. Co. v. Roberts, 144 Ky. 206, 138 S. W. 255. 144 Ky. 820, 139 S. W. 1073. 53 — Branson's Inst. § 765 INSTRUCTIONS FORMS. 834 made any improper ditching upon said land, or in changing filHng or damming of the creek's drains and channels caused, or con- tributed to the injury of which they complain to such an extent that but for such want of ordinary care upon their part they would not have been injured and damaged, they will find for defendant.* (4) The court instructs the jury that, if they believe from the evidence that plaintiffs have suffered no injury and damage ex- cept such as was necessarily incident to a proper and prudent construction of its railroad, they will find for defendant.* (5) The court instructs the jury that if you find and believe from the evidence that defendant in constructing its roadbed did construct the necessary culverts or sluices according to the nat- ural lay of the land for the drainage thereof, so as to protect the plaintiff's land from overflowing waters as well as it was pro- tected before the construction of defendant's roadbed, then you will find for the defendant.^ § 765. Liability for injuries based on negligence. — (1) The .court instructs the jury that if you believe from the evidence that the defendant through its employes was negligent in the running or operation of its train which injured the plaintiff, and that there was no contributory negligence on the part of the plaintiff as ex- plained in the former instructions, then your verdict will be for the plaintiff.* (2) The court instructs the jury that if you believe from the evidence that the injuries, if any, received by the plaintiff were not caused by negligence as herein defined on the part of the de- fendant, its servants, or employes, then you will find for the de- fendant.^ ' Madisonville &c. R. Co. v. Wiar, with the other instructions, this would 144 Ky. 206, 138 S. W. 2SS. naturally be understood to be refer- ■* Madisonville &c. R. Co. v. Wiar, able to the alleged acts of negligence, 144 Ky. 206, 138 S. W. 255. and not something foreign to the is- ° Missouri &c. R. Co. v. Macon sues, and correct instructions were (Tex. Civ. App.), 115 S. W. 847. given on the negligence in issue." St. " "The objection urged is that the Louis &c. R. Co. v. Evans, 80 Ark. 19, negligence of appellant was too 96 S. W. 616. broadly stated, and should have been ' Paris &c. R. Co. v." Calvin, 101 confined to the negligence alleged in Tex. 291, 106 S. W. 879. the complaint. * * * When read 835 RAILROADS. § 'J^'J § 766. Wilful negligence. — The court instructs the jury that if the injury to the deceased was caused by a wilful act or wilful omission of the defendant railway company, or its agents or servants, or by a conscious failure on the part of the defend- ant, its agents, or servants, to perform the duties required of it by law, then the defendant railway company would be liable whether the deceased was negligent or not. In such case the con- tributory negligence of the deceased would not be a defense.* § 767. Care in operation of locomotive or train. — (1) The court instructs the jury that in determining the question of neg- ligence and contributory negligence in this case, the jury should take into consideration the place at which the accident occurred, the nature of the surrounding country, the condition of the road- bed, the manner in which the train was being propelled, the character of the use of that railroad track, the probability of pedestrians being on the track at that time and place, if any, and from all of the facts and circumstances determine whether or not the servants of the defendant in charge of the train exercised ordinary care and prudence in the management and operation of the train at the time and place mentioned, and whether the plaintiff was guilty of contributory negligence under the instruc- tions covering the same.® (2) The court instructs the jury that at the time the accident occurred, the defendant was operating heavy, rapidly moving cars propelled by electricity, dangerous to persons and property in the streets where men, women and children were and had a right to be, and capable of causing serious injury and death unless prop- erly controlled. It was therefore the duty of the defendant to exercise in the control and management of its cars at this time and place a degree of care commensurate with the peril involved." (3) The court instructs the jury that it was the duty of the de- ' Harbert v. Atlanta &c. R. Co., 78 counsel for defendant, that it gave S. Car. 537, 59 S. E. 644. the jury to understand that, in the 'Denbeigh v. Oregon-Washington opinion of the court, the particular R. &c. Co., 23 Idaho 663, 132 Pac. 112. car which struck the child was at that ""The higher court says: "We do time running rapidly." Love v. De- not think this portion of the charge troit &c. R. Co., 170 Mich. 1, 135 N. is subject to the criticism made by W. 963. § 768 INSTRUCTIONS FORMS. 836 fendant's servants, in the running and handling of said east- bound engine and train of cars, to have exercised that degree of care and prudence which an ordinarily careful and prudent per- son, engaged in like business, would have exercised under like circumstances, and a failure to exercise such a degree of care and prudence would render the defendant guilty of negligence in that respect.^^ (4) The court instructs the jury that, in determining the ques- tion as to whether the defendant's servants and employes were guilty of negligence in the present case, the jury are authorized to and should take into consideration the place at which the acci- dent occurred; the manner in which the trains were being pro- pelled; the number of dwelling houses in that vicinity; their dis- tance from the track; and the probability of pedestrians being on the track at that time and place, if any. What would be ordi- nary care and prudence in running a train of cars in a sparsely- populated locality might be negligence in a more populous dis- trict, and it is for the jury to determine, in view of all the facts and circumstances of the case, whether defendant's servants did exercise ordinary care and prudence in the management of said train at the time and place mentioned in the evidence in this case.^^ (5) The court instructs the jury that it is the duty of both the railroad company and of those operating its trains, and of per- sons traveling along the public highway, to use reasonable care and ordinary prudence to avoid collision at any point where the company's road and such public highway may cross each other; and if a collision should occur at any such crossing and any in- jury should happen from such collision and neither party should be guilty of negligence in causing such collision, then no action could be maintained by reason of such an injury. It would be an accident for which the law offers no remedy.^^ §768. Presumption of negligent operation. — (1) The court instructs the jury that if you find from a preponderance of "Schmitt V. Missouri Pac. R. Co., ''Gulf &c. R. Co. v. Greenlee, 70 160 Mo. 43, 60 S. W. 1043. Tex. SS3, 8 S. W. 129. "Schmitt V. Missouri Pac. R. Co., 160 Mo. 43, 60 S. W. 1043. 837 RAILROADS. § 768 the evidence that the plaintiff was struck and injured by an en- gine on defendant's road that this is prima facie evidence of neg- Hgence on the part of the defendant.^* (2) The court instructs the jury that if it has been shovsm in this case that the plaintiff was injured by the running of the locomotives, cars, or other machinery of this company, then a presumption would be raised against the company. This pre- sumption may be rebutted by the defendant by making it appear, either from its own or from the plaintiff's testimony, that the in- jury was done by plaintiff's consent, or was caused by his own negligence; and the plaintiff can not recover if both parties were negligent, but the negligence of the plaintiff was equal to or greater than the defendant's, or if the injury was the result of accident, unmixed with negligence on the part of either party." (3) The court instructs the jury that when an injury is shown to have been sustained by a person by the running of the cars or the locomotives of a railroad company, the presumption of law is that they were negligent, and that presumption remains until the railroad company introduces evidence and shows, or shows by evidence introduced, that it was not negligent.^" (4) The court instructs the jury that you must not find de- fendant guilty of negligence from the mere fact that the loco- motive was backing over B. street crossing following the freight train. Safe railroading is often a matter of minutes, sometimes seconds, and it is not for juries or courts to determine what good or bad railroading requires from their own opinion, or from the fact that an accident has happened under certain conditions ; but it is for you to determine, under all the circumstances, surround- ings, and conditions as they existed at and near the crossing, the fact that the P. M. Railroad was in close proximity, the fact that S. street bridge was not in use for teams, the increase of travel, if any, over the B. street crossing, and the amount of travel over the same, the fact that there were no flagmen or gates at such crossing, the obstructions, if any, which may have obstructed the view of the track to the east of the crossing in respect to per- " Kansas City Southern R. Co. v. Locklear, 9 Ga. App. 344, 71 S, E. Drew, 103 Ark. 374, 147 S. W. SO. 683. "Atlantic Coast Line R. Co. v. " Brunswick &c. R. Co. v. Hooden- pyle, 129 Ga. 174, 58 S. E. 705. § 769 INSTRUCTIONS FORMS. 838 sons approaching the crossing from the north, the passing of the freight train, the following of the backing engine, its speed, and the proximity to the train, whether or not the brakeman was on the tender in position to signal the engineer in case of danger to persons making B. street crossing, and, under all the other facts in the case, whether the defendant railroad was exercising such ordinary and reasonable care and caution as ordinary pru- dence would dictate in running its engine and tender, backing the same, following the freight train that had just passed B. street going in the same direction and on the same track. If you find that the defendant railroad was not exercising such ordinary and reasonable care and caution in its conduct as ordinary pru- dence would dictate, then I charge you that defendant railroad would be guilty of negligence, and plaintiff would be entitled to a judgment, if you find that such negligence of the railroad was the proximate cause of the injury, provided you further find that N. was exercising such ordinary and reasonable care and caution as an ordinarily prudent man would exercise under the same cir- cumstances, surroundings, and conditions as you will find they appeared to him at that time.^^ § 769. Proximate cause of injury. — The court instructs the jury that if you should find the deceased was negligent, yet if, notwithstanding such negligence on the part of deceased, such negligence was not proximate cause of the injury to de- ceased, but the proximate cause of the injury was the failure on the part of the defendant railway company or its agents or serv- ants to give the statutory signals, or if you should find that the defendant railway company, its agents, or servants were negli- gent in not keeping a lookout for travelers at the crossing, or was negligent in not giving warning signals of danger, and such neg- ligence on the part of defendant railway company was the prox- imate cause of the injury to the deceased, then the plaintiff would be entitled to recover.^' " Barnum v. Grand Trunk West- S. Car. 537, 59 S. E. 644. For other em R. Co., 148 Mich. 370, 111 N. W. instructions on proximate cause, see 1036. Chicago &c. R. Co. v. Thomas (Ind.), " Harbert v. Atlanta &c. R. Co., 78 55 N. E. 861 ; Baltimore &c. R. Co. v. 839 RAILROADS. § 77O §770. speed of trains. — (1) The court instructs the jury that if you behave from the evidence that the parties in charge of the engine were guilty of wanton neghgence, then I charge you that H.'s failure to stop, look, and listen, or other negligence on the part of H., would not defeat a recovery in this case. Gentle- men of the jury, to run a train at a high rate of speed, and with- out signals of approach, at a point where the trainmen have rea- son to beKeve there are persons in exposed positions on the track, in a populous district of an incorporated city, or where the public are expected to pass on the track with such frequency and in such numbers, facts known to those in charge of the train, as that they will be held to a knowledge of the probable consequences of maintaining great speed without warning as to impute to them reckless indifference in respect thereto, would render their em- ployer liable for injuries resulting therefrom, notwithstanding there was negligence on the part of those injured.^® (2) The court instructs the jury that if the injury was caused by the engine running more than ten miles an hour, in the limits of the city of T., then, in order to prevent a recovery, defend- ant would have to show that the injury was occasioned by the fault of the plaintiff (A.), or that he (A.) could by the exercise of ordinary care have prevented the injury.^* (3) The court instructs the jury that if you believe from the evidence that at the time the deceased, , was struck and killed by defendant's train of cars, such engine and cars were being run at a greater rate of speed than ten miles [the rate of speed prescribed by ordinance] in the corporate limits of the city of , and that by reason of such running of cars the said (name of decedent) was struck and killed without negligence on his part contributing to his death, then you should find for the plaintiff in the sum of dollars.^^ (4) The court instructs the jury that if they believe and find from the evidence that on , , locomotive engines and trains of cars were, by an ordinance of the city of , prohib- Stumpf, 97 Md. 78, 54 Atl. 978; =° Atlantic Coast Line R. Co. v Ad- Union Pac. R. Co. v. Ruzicka, 6S ams, 7 Ga. App. 146, 66 S E 494 Nebr. 621, 91 N. W. 543. - Jackson v. Kansas City &c R Co Southern R. Co. v. Hyde (Ala.), 157 Mo. 621, 58 S. W. 32, 80 Am St' 61 So. 77 (not reversible error). 6S0. § 7T^ INSTRUCTIONS^FORMS. 84O ited from being run within the corporate limits of said city at a greater rate of speed than miles per hour ; and that on said day defendants, by their servants, did run an engine and train of cars, known as the "tie train," within the corporate limits of said city, at a place where persons were usually upon defend- ants' track, at a greater rate of speed than miles per hour; and that, as said train approached, plaintiff's mule became fright- ened and unmanageable, and ran away with plaintiff, and against his will and efforts to prevent carried him on to said rail- road track at said point ahead of said train ; and that in conse- quence of said train being run at said time and place at a greater rate of speed than miles per hour defendants' servants run- ning said train were unable to stop said train, after they be- came aware that plaintiff was on said track and in peril, in time to avoid striking and injuring plaintiff; and that, had said train been running at said time and place at the rate of speed of miles per hour, it could, by the exercise of ordinary care on the part of the defendants' said servants, have been stopped, after plaintiff was discovered by them on said track and in peril, in time to have avoided striking and injuring plaintiff, — then the jury may find defendant guilty of negligence. And if the jury so find the defendant guilty of negligence, and further find that in direct and immediate consequence of said negligence, and with- out negligence on plaintiff's part contributing thereto, plaintiff was struck by said train, and received the injuries complained of in his petition, then the verdict of the jury must be for the plain- tiff."^ (5) The court instructs the jury that the ordinances of the city of A. require that no engine shall be drawn or propelled by the defendant company over its railway tracks on F. street within the corporation limits of the city of A. at a rate of speed exceeding five miles per hour, and that a bell not less than thirty pounds in weight be attached to each locomotive, and be rung during the whole time such locomotive shall be in motion within the said limits. And if the jury believe from the evidence that the plain- tiff was injured, and that such injury was the result of a failure on the part of the defendant company, or its agents and serv- '" Prewitt V. Missouri &c; R. Co., 134 Mo. 615, 36 S. W. 667. 841 RAILROADS. § 771 ants, to comply with any one or more of said requirements of said ordinances mentioned in the declaration, they must find for the plaintiff, unless they, the jury, further believe that the plaintiff's injury was caused by his own fault in failing to use the precau- tion of a person of ordinary prudence and care in looking out for and listening for approaching trains.^^ §771. Duty to sound signals. — (1) The court instructs the jury that if you find from a preponderance of the testimony that the engineer in charge of the train that killed R. R., or other employe, did not sound the whistle of said train between feet and feet westerly from C. avenue, and did not ring the bell on said engine continuously from said points of distance until said train had crossed C. avenue, that the defendant is guilty of negligence ; and if you find that, because of the failure to so sound said whistle or ring said bell, the deceased, R. R., was killed, your verdict should be for the plaintiff in this case, unless you find that said R. R. did not exercise reasonable and ordinaryxare in crossing said railroad track as an ordinarily prudent person would exercise under all the circumstances of the case.^* (2) The court instructs the jury that if they believe from the evidence that the defendant injured the plaintiff in the town of -, as is alleged in the complaint, and that the whistle was not blown nor the bell rung at interyals or continuously while the de- fendant's train was passing throughthe town of , prior to the time of the accident where the injury occurred, and that the injury resulted from such failure to blow the whistle or ring the bell, the plaintiff is entitled to recover.^^ (3) The court instructs the jury that the law requires the de- fendant to ring the bell or sound the whistle eighty rods before reaching a public crossing, and to continue doing one or the other until the crossing is passed. Under this statute, the sound- ing of the whistle at any point required by the law will not make the defendant liable for any injury that may ensue from it, un- =» Washington Southern R. Co. v. =» Southern R. Co. v. Douslass 144 Lacey, 94 Va. 460, 26 S. E. 834. Ala. 3S1, 39 So. 268. ""Rothe V. Pennsylvania Co., 19S Fed. 21. ^77'^ INSTRUCTIONS FORMS. 842 less the operatives of the engine who sound the whistle know, as reasonable men, by so doing, injury will necessarily and prox- imately ensue.^° (4) The court instructs the jury that it is the duty of a rail- way company to sound the whistle or ring the bell within at least rods of a public crossing, and to keep the whistle sounding or the bell ringing until the crossing is passed or the train stopped, and that a failure to do so is negligence ; so, in this case, if you believe from a preponderance of the evidence that the defendant was negligent in this regard, and that such negli- gence was the proximate cause of the injury, and that the plain- tiff exercised ordinary care for his own safety, your verdict should be for the plaintiff.^^ (5) The court instructs the jury as to the duty and care of said P. in approaching the crossing of M. street where he was injured, it was the duty of said defendant to give timely warning of the approach of its locomotive and train of cars on said track to the plaintiff while approaching said street crossing, and this defend- ant was bound to do, whether or not there was a statute or ordi- nance requiring signals to be given at said street crossing, and any failure to exercise this care required on the part of said de- fendant at said street crossing, if shown to exist in this case, was negligence on the part of said defendant.^^ (6) The court instructs the jury that no particular kind of signals or warnings were required, but any kind or character reasonably sufficient to give notice of the movement of the train to a person who was about to use said crossing, and who at the time was exercising ordinary care for his own safety ; and if the jury believe from the evidence that such signals or warnings were at the time given, then the jury will find for the defendant.^* (7) The court instructs the jury that, if the right of way at this point was much used by the public as a passway, it was the duty of the defendant to give reasonable and timely warnings of the approach of the train and to keep a lookout for persons on the "■■Choctaw &c. R. Co. v. Coker, 89 ^'Vandalia R. Co. v. Baker, SO Ind. Ark. 270, 116 S. W. 216. App. 184, 97 N. E. 16. " Kansas City Southern R. Co. v. ™ Louisville &c. R. Co. v. Price, 2S Drew, 103 Ark. 374, 147 S. W. SO. Ky. L. 1033, 76 S. W. 836. 843 RAILROADS. § ']']\ right of way, and that if this was not done, and by reason of this not being done the plaintifif was injured, they should find for him; but that it was incumbent upon him, in passing along the right of way, to exercise ordinary care for his own safety, and if he failed to do so, and but for this would not have been in- jured, they should find for the defendant.'" (8) The court instructs the jury that if, on account of the dangerous character of the crossing and the amount of travel thereon, the statutory signals did not afford reasonably sufficient warning, then, such other means as the evidence showed might be and were usually employed by railroads at dangerous crossings should be used, as in the exercise of a reasonable judgment might be considered necessary.^^ (9) The court instructs the jury that it was the duty of the de- fendant's servants in charge of said east-bound engine and train of cars, while running or moving within the limits of the city of St. L., to cause the bell on the engine thereof to be constantly sounded; and, if you believe from the evidence thafthe bell on the engine of the train in question was not constantly sounded while said train was running or moving within said limits, then you should find that the defendant was guilty of negligence in that respect.'^ (10) The court instructs the jury that it was the duty of the defendants' servants and employes in charge of the locomotive and train to cause the bell on the locomotive to be rung at a dis- tance of at least eighty rods before reaching the crossing where the cow was killed, and to keep said bell ringing until the train had reached the crossing, or to cause the steam whistle to be sounded at least eighty rods from said crossing, and to cause it to be sounded at intervals until the locomotive reached said crossing; and, if the jury are satisfied by the evidence that de- fendants' servants or employes in charge of said locomotive and train did neglect to cause said bell to be rung, as above stated, and also further neglected to cause said whistle to be sounded at "Boulden v. Louisville &c. R. Co. '"Schmitt v. Missouri Pac. R. Co., (Ky.), 112 S. W. 936. 160 Mo. 43, 60 S. W. 1043. ^ Cincinnati &c. R. Co. v. Champ, 31 Ky. L. 1054, 104 S. W. 988. § 771 INSTRUCTIONS FORMS. 844 least eighty rods before reaching said crossing, and did neglect to cause said whistle to be sounded at intervals until said train reached said crossing, and if the jury further find that the killing of plaintiff's cow was caused by such negligence, they should find for the plaintiff.^^ (11) The court instructs the jury that, as a matter of law, if you should conclude or believe that these [locomotive] signals were not given, as required by this statute, then, under the de- cisions of our Supreme Court, that is negligence per se; and if there was a failure on the part of the railroad company, its agents and servants, to give the signals with reference to crossing of the highway, street, or traveled place, as required by the statutes, which I have read to you, and if D. was injured by any careless- ness and negligence on their part, and that carelessness and negligence or failure to give signals, or anything of that sort, was the direct and proximate cause of his injury, then, un- der circumstances of that sort, he would be entitled to recover, unless you think that at the time he was injured, or at the time of the collision, if there was one at a crossing, that D. was guilty of gross or wilful negligence, or was acting in violation of law^ and that such gross and wilful negligence or unlawful act con- tributed to his injury. In other words, in order to make this thing perfectly plain to you, I have already charged you that the law of, contributory negligence is a good defense as to a case of ordi- nary negligence ; but the law is a little different where a man is injured at a crossing, where a public highway, street, or traveled place crosses a railroad, if the parties in charge of the locomotive or train fail to give the statutory signals at the crossing, and that failure or negligence on their part is the direct and proximate cause of his injury.^* (12) The court instructs the jury that if they conclude that the defendant failed to give the signals required by the statute, as a matter of law the plaintiff would be entitled to recover such damages as they concluded he had sustained, unless they conclude from the testimony in the case that, in addition to a mere want of ordinary care, the deceased was guilty of gross or wilful negh- "'Midgett V. St. Louis &c. R. Co., =^Drennan v. Southern R. Co., 91 124 Mo. App. 540, 102 S. W. 56. S. Car. 507, 75 S. E. 45. 845 RAILROADS. § 771 gence or an unlawful act, and such gross or wilful negligence or violation of law contributed to the injury/^ (13) The court instructs the jury that it is the duty of the employes in charge of railway trains to give the proper signals as required by statute, and to use ordinary care on approaching the crossing of the railroad and a public highway so as to pre- vent injury to those traveling on the highway.^" (14) The court instructs the jury that if you find and believe from a preponderance of the evidence that the plaintiff was cross- ing the track of the defendant's railway at a public crossing with his mule team and wagon, and if you believe that, when the plain- tiff was on the defendant's track upon said public crossing, the team of the plaintiff which he was driving to his wagon was struck by one of the defendant's engines on its said track and killed, and the wagon destroyed, and that plaintiff was, by reason of his team being so struck, thrown from his wagon, and was thereby hurt and injured as charged in his petition, without fault or neg- ligence on the part of the plaintiff that caused or proximately con- tributed to the plaintiff's injuries, and if you believe that the agents and employes of the defendant operating said engine and train failed to blow the whistle at a distance of at least eighty rods from said crossing, and to ring the bell at said distance from said crossing, and to keep the said bell ringing until said crossing was reached, and if you believe that by reason of the failure to so blow the whistle and ring the bell plaintiff drove upon the track, and his team was struck and killed, and his wagon destroyed, and the plaintiff hurt, the plaintiff would be entitled to recover." (15) The court instructs the jury that if they should believe from the evidence that the whistle was not, at least twice, sharply sounded, at a distance not less than yards before the high- way crossing referred to in the plaintiff's declaration was reached, and that such failure to so sound the whistle at such distance tended to cause the accident complained of in said declaration, then the defendant, the Railway Company, is liable for all '= Harbert v. Atlanta &c. R, Co., 78 " Coffee v. Chicago &c. R. Co., 104 S. Car. 537, 59 S. E. 644. Tex. 127, 134 S. W. 1174. '" Harbert v. Atlanta &c. R. Co., 78 S. Car. 537, 59 S. E. 644. § TJ^ INSTRUCTIONS FORMS. 846 damages caused by such neglect, and they must find for the plain- tiff, unless they believe from the evidence that the plaintiff, by his own negligence and recklessness, directly and proximately contributed to the act which caused the injury.^^ § 772. Duty to soimd signals — Farm crossings. — The court instructs the jury that the defendant railroad company is not bound to whistle or ring the engine bell when approaching a private or farm crossing; and, further, that said defendant rail- road company may regulate the speed of trains approaching pri- vate crossings as it may desire by its own regulations ; but, never- theless, the jury are instructed that said defendant railroad company, knowing that said private crossings are likely to be used by persons passing over and upon the railroad track are bound, when approaching said crossings, to keep a proper lookout, and to use all reasonable precautions when approaching said private or farm crossing, to prevent injury to any one on or approaching such crossings.'" § 773. Duty to sound signals — Effect of knowledge of ap- proach though no signals sounded. — ( 1 ) The court instructs the jury that if they believe from the evidence that the deceased saw the engine approaching, or knew of its approach, before he got upon the track, or could have seen such engine by looking, or could have heard its approaching by listening, then the failure of defendant's servants to ring the bell of the engine, if a fact, is immaterial, and plaintiff is not entitled to recover on that ground of negligence. The court further instructs the jury that plaintiffs ought not to recover in this case unless they find from the evi- dence that the servants and agents of defendant in charge of the engine saw, or by the exercise of ordinary care and diligence might have seen, deceased on defendant's track in time to have stopped the train, and thus averted the injury. The jury are also »' Atlantic &c. R. Co. v. Rieger, 95 Utah 263, 71 Pac. 209; Reiter-Con- Va. 418, 28 S. E. S90. Contributory noUy Mfg. Co. v. Hamlin, 144 Ala. negligence, see Chicago &c. R. Co. v. 192, 40 So. 280; Wilder v. Great Pollard, S3 Nebr. 730, 74 N. W. 331; Western Cereal Co., 130 Iowa 263, Galveston &c. R. Co. v. Henning 104 N. W. 434, (Tex. Civ. App.), 39 S. W. 302; '"Morgan v. Wabash R. Co., 159 Fritz V. Western Union Tel. Co., 25 Mo. 262, 60 S. W. 195. 847 RAILROADS. § 774 instructed that if, after deceased entered upon the railroad track, the employes in charge of the train which struck him did not have time, by the exercise of ordinary diligence, to stop the train, then no negligence can be imputed to defendant company because they did not do so, and the verdict should be for the de- fendant.'" (2) The court instructs the jury that even though you believe from the evidence that the engineer did not sound the whistle or ring the bell of the locomotive for a distance of eighty rods from the crossing, and continue the same at intervals until the train had passed over the crossing, yet, if you further believe from the evidence that this failure did not cause the injury, you will find the issues for the defendants.*^ § 774. Duty to maintain lookout on approaching train. — (i) The court instructs the jury that it was the duty of the em- ployes in charge of said engine to keep a constant lookout for persons on the track, and, while it was not required that every employe upon said engine should be constantly upon the lookout, it was sufficient that the lookout be kept by one person, unless by reason of a curving track or other obstruction a careful lookout could not be kept by one person only. And, if you find from all the evidence that such constant lookout was not kept by either the fireman or conductor or engineer on said engine at the time and place of the injury complained of, and that, had such lookout been kept, said child could have been seen in time to avoid the alleged injury by the use of ordinary care, and that by reason of such neglect to keep such lookout, if any, the said child, V. M. N., was injured, your verdict will be for the plaintiff.*^ (2) The court instructs the jury that it is the duty of the employes of a railroad train to keep a constant lookout for per- sons and property upon its track, and, if any person or property shall be killed or injured by the neglect of such employes to keep such lookout, the company owning and operating such railroad shall be liable and responsible to the person injured for all dam- ^;Schmitt V. Missouri Pac. R. Co., "St. Louis &c. R. Co v Flinn 88 160 Mo. 43, 60 S. W. 1043. Ark. 484, 115 S. W 142 "Midgett V. St. Louis &c. R. Co., 124 Mo. App. S40; 102 S. W. 56. § 775 INSTRUCTIONS FORMS. 848 ages resulting from neglect to keep such lookout ; and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed, unless the deceased was guilty of contributory negligence/^ (3) The court instructs the jury that it is the duty of an en- gineer in charge of a locomotive engine to use ordinary care in discovering the employes rightfully on the track by keeping a reasonable lookout for that purpose, and if you find and believe from the evidence, on the occasion when A. was killed, B., the engineer in charge of defendant's train, did not discover deceased in time to have prevented the collision by stopping the train, and you further find and believe from the evidence that said engineer in charge of said train did not exercise ordinary care in keeping a proper lookout for employes and objects on the track, and you further find that if he had exercised such care as an ordinarily prudent person would have done, he would have discovered de- ceased in time to have stopped the train, and thereby prevented the death of A., and you further believe from the evidence that said engineer's failure to keep a proper lookout, if you find he so failed, was an act of negligence and the proximate cause of A.'s death, you will find for the plaintiffs, and assess their damages as hereinafter instructed, unless you find for the defendant un- der subsequent instructions/^ §775. Duty to station flagmen at crossings. — (1) The court instructs the jury that if they find from the evidence that the crossing was dangerous, and the railway company knew, or could have known, by the exercise of ordinary care, that it was dangerous, and that a person of ordinary prudence and caution would have placed a watchman at the crossing under similar cir- cumstances, and that the failure to keep a watchman at the cross- ing was the proximate cause of the team's becoming frightened and injuring appellee, they may find a verdict for him.^^ *= St. Louis &c. R. Co. V. Pritchett, proof, see Chicago &c. R. Co. v. Spil- 66 Ark. 46, 48 S. W. 809. For other ker, 134 Ind. 380, 33 N. E. 280; Riet- instructions on the duty to keep look- veld v. Wabash R. Co., 129 Iowa 249, out, see Fletcher v. South Carolina lOS N. W. SIS. &c. R. Co., S7 S. Car. 205, 3S S. E. "Houston &c. R. Co. v. Burnett, 49 S13 ; Lane v. Missouri Pac. R. Co., Tex. Civ. App. 244, 108 S. W. 404. 132 Mo. 4, 33 S. W. 645. Burden of '" St. Louis Southvjfestern R. Co. v. 849 RAILROADS. § 776 (2) The court instructs the jury that if they believe, from the evidence, that by reason of the proximity of the crossing to the city of M., and the number of the travehng public crossing there, or by reason of any obstruction of view of the railroad, or of the hearing of the approach of trains, said crossing was exceptionally or unusually dangerous, then it was the duty of defendant to use ordinary care to discover such danger, and, if necessary to avoid injury to travelers, to keep a flagman there to warn travelers of approaching trains, or to adopt and use some other reasonably safe and effectual mode of warning travelers of the approach of its trains; and if the jury believe from the evidence, that defend- ant negligently failed to discover such danger, if any, or negli- gently failed to provide or use such means of warning as were rea- sonably safe and effectual to avoid injury to such travelers, and by reason thereof the injury to deceased occurred, then the de- fendant is liable, unless deceased negligently contributed to such injury and death, as defined in instruction No. .** § 776. Care toward children on track. — (1) The court in- structs the jury that if you find by the greater weight or pre- ponderance of the evidence that the deceased child at the time he was struck, or just prior thereto, was on the railroad track and be- tween the cattle guards of the private crossing, and further find that on account of the location, situation, or surroundings of the private crossing, such as its proximity to plaintiff's residence or the frequency of its necessary use by members of plaintiff's fam- ily, or others using the same in the operation of the farm, the exercise of ordinary care required that defendant's employes op- erating its engine should on approaching the same have kept a lookout for persons rightfully using said crossing, and further so find that said employes failed to exercise ordinary care to do so, and thereby failed to discover the deceased on said track in time to stop the train or to avoid the accident, such failure would be negligence for which defendant would be liable, and, if you find Moore (Tex. Civ. App.), 107 S. W. ""Newport News &c. Co. v. Stew- 658. art, 99 Ky. 496, 36 S. W. 528. 54 — Branson's Inst. § ^^^ instructions — forms. 850 that such negligence was the cause of the accident, your verdict should be for the plaintiff.*' (2) The court instructs the jury that the place where the acci- dent happened was a public street and that defendant did not have an exclusive right thereon for the purpose of making up its trains or switching its cars, and that the public, including plain- tiff's child, had the same right to the use of the highway as the de- fendant had, and that defendant's servants, in the movement of its Cars upon said street, had no right to assume that the way was clear, but were bound to exercise ordinary care before moving such cars to ascertain and discover whether any person upon the street might be injured by such movement, but was not required to guard against persons under or between its cars.** (3) The court instructs the jury that the plaintiffs claim that the death of A. B. C. S., their minor son, was occasioned by the following negligence on the part of the defendant company ; that is to say : (i ) That the defendant's servants and agents in charge of the engine and train of cars which struck the deceased saw, or in the exercise of reasonable care and diligence in keeping a lookout for persons on the track could have seen, him in time to have stopped the train and avoided striking him. (2) That de- fendant's servants and agents in charge of the engine and train failed to ring the bell, as required by ordinance of the city of St. L., which provides that all cars and locomotives propelled by steam power, when moving in said city, shall keep the bell con- stantly ringing. (3) That the defendant permitted its brakes for the stopping of said engine and train of cars to become defective, out of order and repair, by reason of which said engine and train of cars could not be stopped in time to avoid collision with plain- tiff's son. There is no evidence before you to support this speci- fication of negligence. These allegations the defendant has de- nied in its answer. The defendant has also alleged, by way of affirmative defense, that whatever injuries plaintiffs' said son sustained by its train were caused, in whole and in part, by his own contributory negligence. With reference to the charges by the plaintiffs, as their ground of action, the jury is instructed that " Ressler v. Wabash R. Co., 152 « Jaffi v. Missouri Pac. R. Co., 205 Iowa 449, 132 N. W. 827. Mo. 450, 103 S. W- 1026. 851 RAILROADS. § 776 facts supporting them must be proved, and it must further appear that they were the cause of the injuries and death of plaintiffs' son. With respect to the issue of contributory negligence of the deceased son of plaintiffs, the jury are charged that the burden of proving such negligence rests upon the defendant. From this, however, it must not be inferred that it devolves upon the defend- ant to introduce upon its part independent witnesses to give tes- timony tending to show such facts, if they exist, but the defendant may rely upon the facts, and necessary inferences from the facts, elicited from plaintiffs' witnesses as well as its own.*" (4) The court instructs the jury that if they believe from the evidence that A. B. C. S., on the day of was the un- married son of plaintiffs, and that on said day he was walking eastwardly on defendant's railroad track between N. and T. avenues, in the city of St. L., and that while so walking he was run over and killed by defendant's east-bound engine and train of cars in charge of defendant's servants, then your verdict should be for the plaintiffs, provided you further believe from the evi- dence that the injury complained of occurred while plaintiffs were exercising that degree of care as to the care and custody of their son, as that term is explained in instruction No. , and while the said A. B. C. S. was himself exercising that degree of care and prudence for his own safety that an ordinarily careful and prudent person, of his age and intelligence, under like circum- stances, would have exercised, and provided that you further be- lieve from the evidence that the injury was caused by the negli- gence of the defendant's servants, as the term "negligence" is explained in either the first or second of the foregoing instruc- tions.'" (5) The court instructs the jury that, on the other hand, it was the duty of A. B. C. S., in attempting to cross or walk upon defendant's track, to have exercised that degree of care and pru- dence that an ordinarily careful and prudent person of his age and intelligence, under like circumstances, would have exercised, " Schmitt V. Missouri Pac. R. Co., " Schmitt v. Missouri Pac. R. Co., 160 Mo. 43, 60 S. W. 1043. ' 160 Mo. 43, 60 S. W. 1043. § Tjy INSTRUCTIONS FORMS. 852 and a failure to exercise such a degree of care and prudence would render him guilty of negligence." (6) The court instructs the jury that if you believe from the evidence that defendant, through its employes operating said lo- comotive, failed to exercise ordinary care to discover said child on said track (if it was on said track) in time for said train to be stopped in the exercise of ordinary care by the use of ap- pliances at hand before it struck the child, and you further believe that such failure to keep a reasonable lookout, if 'any, was due to negligence on the part of defendant's said employes, and was the proximate cause of the death of plaintiff's child, then the de- fendant company would be liable in this case.^^ (7) The court instructs the jury that it was the duty of the servants and agents of the defendant company in charge of its train to use ordinary care to discover the child, M. O.^ on its track, and a failure to use ordinary care would be negligence on the part of the defendant company.^' § 777. Relative rights of public and railroad at crossings. — -The court instructs the jury that at the crossing of a railroad and highway the rights and obligations of the railroad company and travelers on the highway are reciprocal ; but it is the privilege of the company that its trains shall have the right of way, and that all persons on the highway shall yield precedence to the trains. °* § 778. Relative rights of public and company on right of way. — The court instructs the jury that the defendant has the right to the exclusive use of its railroad track, free and clear of any use by others, but that it may relinquish such right of ex- " Schmitt V. Missouri Pac. R. Co., ^ Galveston &c. R. Co. v. Olds 160 Mo. 43, 60 S. W. 1043. See also (Tex. Civ. App.), 112 S. W. 787. Colorado Midland R. Co. v. Robhins, "Washington Southern R. Co. v. 30 Colo. 449, 71 Pac. 371 ; Griffin v. Lacey, 94 Va. 460, 26 S. E. 834. See Seaboard Air Line R. Co., 138 N. also Southern R. Co. v. Douglass, 144 Car. 55, SO S. E. 516. Ala. 351, 39 So. 268; Montgomery v. " Olivares v. San Antonio &c. R. Missouri Pac. R. Co., 181 Mo. 4/7, 79 Co., 37 Tex. Civ. App. 278, 84 S. W. S. W. 930; St. Louis Southwestern 248. R. Co. v. Stonecypher, 25 Tex. Civ. App. 569, 63 S. W. 946. 853 RAILROADS. ' § 779 elusive use to the public, or to any class of persons, such as its employes, either by giving its express permission, or by its tacit or implied permission, which may be established by circumstances, such as knowledge of and acquiescence in and its long, continuous use as a public passageway. If, from the evidence, you believe that the defendant's employes, as a class, had the rightful per- mission of the defendant to use its track, where plaintiff was hurt, as a footway, then you are charged that the plaintiff was rightfully in the use of such track, as that term has been herein- before defined.'^^ § 779. Relative rights of public and company on tracks laid in streets. — (1) The court instructs the jury that the place where the accident happened was a public street, and that defendant did not have an exclusive right for the purpose of making up its trains or switching its cars, and that the public, in- cluding plaintiff's child, had the same right to use the highway as the defendant had, and that defendant's servants in the move- ment of its cars upon said street had no right to assume that the way was clear, but were bound to exercise ordinary care before moving such cars to ascertain and discover whether any person upon the street might be injured by such movement, but was not required to guard against persons under or between its cars."^^ (2) The court instructs the jury that the engine of the de- fendant company at the time of this accident while upon A. avenue was upon land included in its right of way, as part of its charter from the state. The dedication of A. avenue to public use was subsequent to the grant of the right of way of the rail- road company. The right of way thereupon of the railroad com- pany was superior to that of this plaintiff and the public while it was in the use of that portion of the avenue. But the plaintiff and the public also had a right to use this highway, and, while the right of the railroad company was superior, it was the duty of the railroad company, in using its right of way upon that "" Thompson &c. Lumber Co. v. ""Jaffi v. Missouri Pac. R. Co., 205 Tliomas (Tex. Civ. App.), 147 S. W. Mo. 450, 103 S. W. 1026. 296. § ySo INSTRUCTIONS FORMS. 854 avenue, to use it with due regard to the rightfe of other people lawfully upon the highway." § 780. Injuries at crossings. — (1) The court instructs the jury that, if they should find from a preponderance of evidence that the plaintiff was in a wagon upon the streets or highways at the crossing of defendant's railway track in question, and that defendant's switch engine, which had been blocking the crossing, moved down the track and onto another track, the switch of which had been thrown for its entry thereon, and which was seen by the plaintiff, and which said engine was distant about feet, and to plaintiff it appeared, from the conduct of the engine crew and other surrounding facts and circumstances, that the en- gine would not immediately return, and that he would have time to cross, he had a right to go upon said crossing, unless you should further believe that plaintiff in so acting upon such appearances was exposing himself to a danger that was obvious, such that a person of ordinary intelligence and prudence would not have acted upon in similar circumstances.^' (2) The court instructs the jury that when those in charge of a railway train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are that the injury was done by the consent of the person injured, or that by the observance of ordinary care he could have avoided the in- jury, or, in mitigation of damages, that his negligence contributed to it. When such injury occurs, the onus is upon the company to prove such fault on the part of the injured person."^' (3) The court instructs the jury that if he [plaintiff] was in- jured through the negligence of the defendant company, its serv- ants, or agents, then he is entitled to recover, unless the defendant company has satisfied you, by the greater weight of all the evi- dence in the case, that the plaintiff himself was negligent in that regard, or in connection with that crossing, in entering upon the " Carmany v. West Jersey &c. R. " Atlantic Coast Line R. Co. v. Co., 78 N. J. L. 552, 74 Atl. 656. Locklear, 9 Ga. App. 344, 71 S. E. ''Louisiana &c. R. Co. v. Ratcliffe, 683. 88 Ark. 524, 115 S. W. 396. 855 RAILROADS. § 781 crossing, and if he was negligent, and if his negligence con- tributed as a proximate cause to his injury, why he can not re- cover, even though the defendant company was negligent."" (4) The court instructs the jury that if you find that the de- fendant injured the property of the plaintiff as alleged, and that such injuries were done maliciously or wantonly, then con- tributory negligence on the part of the driver in charge of said property would not defeat the action, but plaintiff would be en- titled to recover notwithstanding such contributory negligence."^ §781. Care in running trains at highway crossings. — (1) The court instructs the jury that the general laws of this state require that an engineer in charge of a locomotive, as he ap- proaches a public street or road, shall check and keep checking the speed so as to stop in time should any person or thing be cross- ing the track at said public street or road. A failure to do this is negligence per se for which the company might be held liable, if the injury had occurred on the crossing. Now, when the injury does not occur on the crossing, but occurs so near the crossing that a failure to observe this law may be part of the res gestae of the transaction, then, and in that case, while it would not be neg- ligence per se with reference to the person injured off the cross- ing, yet the jury, in considering the whole case, can take that fact into consideration; that is, the fact that the engineer failed to have his engine under proper control as he approached the cross- ing. Now, I do not charge you that in this case the engineer did not have his engine under proper control as required by law, as he approached the public crossing in the city of T. You will as- certain as to that from the evidence; but I do charge you that you may, in certain instances, take into consideration the fact that the engineer did or did not have his engine under such con- trol as to stop it in time should any person or thing be crossing the tracks at the public street or road."^ (2) The court instructs the jury that you will first decide whether the defendant company, its servants and agents, was ™ Douglass V. Southern R. Co., 82 " Atlantic Coast Line R. Co. v. Ad- S. Car. 71, 62 S. E. IS. ams, 7 Ga. App. 146, 66 S. E. 494. °'Rowe V. Southern R. Co., 85 S. Car. 23, 66 S. E. 1056. § 782 INSTRUCTIONS FORMS. 856 negligent in the manner in which it was running that lever car in approaching that highway crossing. If it was — if the de- fendant company, its agents, and servants were negligent, and the negligence was the proximate cause of the plaintiff's injury — then the defendant would be liable, unless the defendant has sat- isfied you, by the greater weight of all the evidence in the case, that the plaintiff contributed by his own negligence, as a prox- imate cause, to his own injury.®^ (3) The court instructs the jury that if you believe from the evidence in this case that the train of the defendant was upon the crossing, or so near said crossing that by the use of ordinary care the accident could not have been avoided at the time plain- tiff's horse came to said crossing, and that said horse ran against said train and received the injury complained of, then you will re- turn a verdict for the defendant.^* §782, Care in running trains at street crossings. — (1) The court instructs the jury that if you find that because of the special circumstances existing in this case, such as that this was a crossing in the city, much used and necessarily frequently pre- senting a point of danger, where several tracks run side by side and there is consequent noise and confusion and increased dan- ger; that owing to the near situation of houses, barns, fences, trees, bushes or other natural obstructions which afforded less than ordinary opportunity for observation of an approaching train, and under like circumstances of a special nature, it was reasonable that the railroad company should provide special safe- guards to persons using the crossing in a prudent and cautious manner, the law authorizes you to infer negligence on its part for any failure to adopt such safeguards as would have given warn- ing, although you have a statute in Michigan which undertakes by its provisions to secure such safeguards in the way the statute '" Douglass ' V. Southern R. Co., 82 be no question that such act was the S. Car. 71, 62 S. E. IS. proximate cause and there was no "It was objected that the charge error in the court's assuming the, failed to require that the act on the fact." Ludtke v. Texas &c. R. Co. part of the horse was the proximate (Tex. Civ. App.), 132 S. W. 377. cause of the killing, but "there could 857 RAILROADS. § 782 points out. Th6 duty may exist outside the statute to provide flagmen or gates or other adequate warnings or appHances, if the situation of the crossing reasonably requires that — and of this you are to judge — and it depends upon the general rule that the company must use its privilege of crossing the streets on its surface grade with due and reasonable care for the rights of other persons using the highway. with proper care and cau- tion on their part. So if you find that the train hands kept no proper lookout and managed the train without due caution and reasonable care, you will be authorized to infer negligence on the part of the company as one of the facts established in the case."' (2) The court instructs the jury that if you should find from the evidence that the engineer, as he approached A. street crossing, did not check and keep checking the speed of his locomotive, so as to stop in time, should any person or thing be on the cross- ing, the defendant would be negligent as a matter of law.''" (3) The court instructs the jury that it was not the duty of the defendant to stop its trains or train in question so as to permit the plaintiff to pass over the crossing in question before such train passed the crossing, and this rule applies in backing up its trains as well as running such trains ahead, provided in starting to back such train it used reasonable care to avoid injury to others."' (4) The court instructs the jury that the degree of care re- quired of said defendant while approaching the street crossing where plaintiff was injured was commensurate with the known dangers of the particular situation created by its use of said street. The defendant had a right to occupy said streets with its tracks and to use them for the purpose of moving its loco- motives, cars, and trains over and along said tracks crossing said street ; but it had no exclusive right, except to run its loco- motives, cars and trains on its said track over said street cross- " Grand Trunk R. Co. v. Ives, 144 Locklear, 9 Ga. App. 344, 71 S. E U. S. 408, 12 Sup. Ct. 679, 36 L. ed. 683. 485. "Illinois Cent. R. Co. v. Larson, °° Atlantic Coast Line R. Co. v. 152 III. 326, 38 N. E. 784. § 782 INSTRUCTIONS — FORMS. 858 ing, and the law imposes upon the defendant the duty of using and managing its locomotives and trains of cars on and over its line of road crossing said street in such a manner as not to injure others who were themselves lawfully using said street and said street crossing; and the running of its locomotives and trains of cars at a high rate of speed over said street crossing without giving reasonable notice and warning of the approach of its locomotives and cars by ringing a bell or sounding a whistle would subject said defendant to Hability to the plain- tiff, if said P. was injured while crossing said street, and without any fault or contributory negligence upon his part."* (5) The court instructs the jury that if they believe from the evidence that the public frequently used M. cross or C. street in the city of M. where the defendant's railroad crosses same, then it was the duty of the defendant, in backing its trains over M. cross or C. street crossing in M., to give such signals and warnings of the train's approach as were reasonably necessary under the circumstances to warn persons in the act of using said crossing of the approach of the train, and to use ordinary care to keep its engine and cars under such control as to avoid injury to persons exercising ordinary care for their own safety in using said crossing; and if the jury believe from the evidence that the agents and servants of the defendant engaged in the movement of its trains failed to give such signals and warn- ings, or to have the train under such control, and the plaintiff's decedent, E. P., lost his life by reason of such negligence of the defendant's employes, and he was at the time exercising or- dinary care for his own safety, then the law is for the plain- tiff, and the jury will so find.''^ (6) The court instructs the jury that the plaintifif claims that the car was standing within six or eight feet of the young man as he stood upon the crossing, with his back toward it, and that while in this position the engine and a second car came in behind °*Vandalia R. Co. v. Baker, 50 Ind. St. Louis Southwestern R. Co. v. App. 184, 97 N. E. 16. Stonecypher, 25 Tex. Civ. App. 569, ™ Louisville &c. R. Co. v. Price, 25 63 S. W. 946; Southern R. Co. v. Ky. L. 1033, 1(> S. W. 836. See also Douglass, 144 Ala. 351, 39 So. 268. 8S9 RAILROADS. § 782 and moved the first car unexpectedly up onto him, causing the injury. It is the claim of the operatives of defendant that the first, car was standing sixty or eighty feet east of such sidewalk and that before setting it in motion each of the switchmen looked and saw no one upon the sidewalk; nor did either of them see the young man come onto the sidewalk, although a lookout was maintained. It is undisputed that the young man was found under the second car forty feet west of the sidewalk, and it is apparent that he must have come there in some way. It is for you to say which of these two conflicting theories is the more probable.'" (7) The court instructs the jury that if you believe from the evidence that street is a public highway in the city of . , , along which persons were in the habit of riding and driving, and that the defendant operated a line or lines of railway across said highway, then it became and was the duty of the defendant in moving its cars across said highway to ex- ercise ordinary care and caution to prevent collision with per- sons or conveyances moving thereon; and by ordinary care and caution is meant such a degree of care and caution as persons of ordinary and reasonable prudence engaged in like business would exercise under like circumstances, and a failure to exer- cise such care, if s,uch existed, would constitute negligence. Now, if the jury believe from the evidence that on , , the plaintiff, in company with other parties, was driving in a buggy along said highway, and while in the exercise of ordinary care and caution, both on her part and on the part of the driver of said buggy, drove upon the track of defendant, and that de- fendant then and there was guilty of negligence, as negligence is herein above defined, in backing a train of its cars so that said train struck the said buggy, while upon defendant's track in said ""The only portion of the request necessarily have occurred to every which can be complained of as argu- juror, and the court in no way inti- mentative," says the Supreme Court mated any opinion as to which theory of Michigan, "is that contained in the he preferred. The objection is so last two sentences. The statements devoid of merit as to be almost friv- of fact were undisputed, as stated by olous." Davis v. Michigan Central R. the court, and were such as must Co., 147 Mich. 479, 111 N. W. 76. § 7^2 INSTRUCTIONS FORMS. 86o highway, by which plaintiff was thrown out and injured, then your verdict will be for the plaintiff; and the ordinary care and caution required to be exercised by the plaintiff and said driver in driving on said track at that time and place was that which a reasonably prudent person would have exercised under like circumstances.'^ (8) The court instructs the jury that a railroad company running and operating its trains upon and across the streets of a city must use greater care and diligence to prevent accidents to persons who may be upon or crossing said streets than is re- quired of it in less frequented and populous localities; that in certain localities in a city greater precautions may be necessary than in others by reason of the existence in such localities of conditions or particular surroundings, making the danger of accidents there greater than in those places at which such condi- tions and particular surroundings do not exist; and that if a train is running upon or across a highway, or street, at a place where, by reason of the existence of special conditions and par- ticular surroundings, there is greater danger of accidents to per- sons upon or crossing the street than in places where such special conditions and particular surroundings do not exist, it is the duty of the railroad company and its employes in charge of the train to exercise greater precautions, to be on the lookout, and to give warning of the approach of the train of a character de- pending upon the particular locality and circumstances to avoid accidents than would be required in other localities where such conditions and particular surroundings do not exist, and any neglect of such precautions to be on the lookout and to give warning of the approach of the train as are proper under the peculiar surroundings and circumstances of the locality consti- tutes negligence for which the railroad company is liable in damages if the jury believe that said negligence was the proxi- mate cause of the accident, unless the injured person, by the exercise of such care on his part as would be used by an or- " Montgomery v. Missouri Pac. R. Co., 181 Mo. 477, 79 S. W. 930. . 86l RAILROADS. § 784 dinarily prudent person under the same circumstances, could have avoided the accident.''^ § 783. Violation of law in allowing cars to block crossing. — The court instructs the jury that it is a crime under the laws of this state for any person running a railroad train carrying or used to carry freight to permit or suffer any car of said freight train to remain standing across any highway, street, alley, or farm crossing, and that a violation of this statute would be negligence. And in this case, if you shall find that the de- fendant did leave one of its freight cars projecting into S. street so as to obstruct the same as alleged in the complaint, you will find the defendant guilty of negligence, and if you further find that such negligence was the proximate cause of plaintiff's in- juries, if any, without his fault, your verdict should be for the plaintiff.'" § 784. Collisions with traction engines at crossings. — (1) The court instructs the jury that if you find from the evidence that the defendant, if guilty of anything, was only guilty of ordinary negligence, and was not guilty of wilful or wanton and reckless conduct, your verdict should be for the defendant, as the rule is that, if the plaintiff is guilty of negligence contrib- uting to the destruction of its property, it can not recover unless the defendant was guilty of gross negligence, and, under the law of this state, it is contributory negligence for a person to propel and cross a railroad track with a traction steam road roller with a train of wagons, in all feet in length, and requiring some minutes to cross, without sending a man up and down the track to flag approaching cars. * * * Now, gentlemen, this is a question for you to determine from all the facts and cir- cumstances in evidence in the case. You may consider the evidence in reference to the distance at which the road roller could be seen by the defendant company ; the degree of the curve in the track; the blowing of the whistle; the distance in which a car can be stopped running at miles an hour ; the distance "Norfolk &c. R. Co. v. Munsell, "Central Indiana R. Co. v. Wish- 109 Va. 417, 64 S. E. SO. ard (Ind. App.), 104 N. E. 593. § 7^4 INSTRUCTIONS FORMS. 862 the car was from the steam roller when the defendant company anticipated, or should have anticipated, danger, and its ability or inability to avoid the collision if it anticipated, or should have anticipated, danger. So the plaintiff can not recover in this case unless you find by the fair preponderance of the evi- dence, as above described to you, that injuiy occurred by reason of the gross negligence of the defendant. But it is not meant that the motorman must have actually intended to do the par- ticular wrong complained of. By gross negligence is meant in- tentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of an- other, and also implies a thoughtless disregard of the conse- quences without the exercise of any effort to avoid them. Un- less, therefore, you find from the evidence that the motorman after he saw plaintiff's steam roller upon the track, and when he had no reason to believe it would vacate the track before the car would reach the highway crossing did nothing to pre- vent the collision, but ran on in reckless disregard of the conse- quences, you can not find a verdict for the plaintiff, and you must find for the defendant.'* (2) The court instructs the jury that if you find from the proof that he [plaintiff driving traction engine] had complied with the statute, and had had a person on the lookout two hun- dred yards in front of him, and by doing that the injury would not have occurred, then the plaintiff would not be entitled to recover; but the court does not think that the mere failure to have some one on the lookout ahead, unless the jury is of the opinion that, had he had him there, the injury would not have resulted, that plaintiff would have no right to recover. So, if you find that the plaintiff failed to have a lookout two hundred yards ahead of his [traction] engine, and that failure did not cause or result in his injuiy, and having him there would not have made it different from what it was, and plaintiff was otherwise entitled to recover, he would be entitled to recover, although he did not have him there." '"Good Roads Const. Co. v. Port "Chesapeake &c. R. Co. v. Crews, Huron &c. R. Co., 173 Mich. 1, 138 N. 118 Tenn. 52, 99 S. W. 368. W. 320. 863 RAILROADS. § 785 § 785. Care to be exercised at points where persons may be expected on tracks. — (1) The court instructs the jury that if they beheve from the evidence that H. and B., the persons alleged to have been in charge of the engine that killed R. H., had been for a month or more prior to the night of the of , 19 — , operating a switch engine on F. street, between W. and M., then I charge you that you would be authorized to infer and find that the said H. and B. knew of the conditions prevail- ing on said F. street between W. and M., at the time R. H. was killed, with respect to the number of people who crossed and re- crossed said street at the place of the alleged accident, and the frequency with which they crossed and recrossed/® (2) The court instructs the jury that if you believe from the evidence that the place where the plaintifif was injured was a place much frequented, with the knowledge of defendants, by people walking to and fro, or being at that point on the track of this defendant railroad company, then, even though the place where the plaintiff was hurt was not on a pubHc crossing, it was the duty of the engineer on that engine, in addition to complying with the city ordinance by slowing down to ten miles an hour, to have kept a vigilant outlook, and, if he failed to do so, the defendant may be liable.'^ (3) The court instructs the jury that when with the knowl- edge and consent or acquiescence or permission of a railway company any portion of its roadbed, bridges, or trestles have been for any considerable length of time, commonly, usually, and customarily used by pedestrians as a footpath, it is the duty of such company by its agents and servants engaged in the opera- tion of its engines and trains over such portions of its roadbed, bridges, and trestles thus used to exercise ordinary prudence to keep a lookout for persons on its track, where people may be expected to be, to avoid injuring them. If, therefore, you be- lieve from the evidence in this case that the roadbed and bridge of the defendant company between the stations of R. and B. where plaintifif was injured, if you find he was injured, was "Southern R. Co. v. Hyde (Ala.), "Atlantic Coast Line R. Co. v. Ad- 61 So. n. ams, 7 Ga. App. 146, 66 S. E. 494. § 7^5 INSTRUCTIONS FORMS. 864 on the day of , 19 — , and for a number of years im- mediately prior thereto had been, commonly, usually, and custom- arily used by pedestrians as a footpath, and you believe that such use by the public of its roadbed and bridge was with the knowledge and consent or acquiescence or permission of de- fendant company and its train employes, and you believe that on the day of , 19 — , the plaintiff attempted and did use the defendant's roadbed and bridge as a footpath in traveling from R. to B., and you believe that at the bridge which crossed S. creek he was run upon and struck by one of defendant's en- gines and was injured, and you believe that the servants of the defendant operating the train in question failed to exercise or- dinary prudence to discover the presence of any person who might be using a portion of the roadbed and bridge in question at the time and place and for the purpose plaintiff was using it, and you believe that by the exercise of such degree of care by defendant's servants operating its engine they would have dis- covered the plaintiff in time to have avoided injuring him, and you find that the acts of defendant's servants operating its en- gine was negligence, as herein defined, and that the same was the proximate cause of plaintiff's injury, if any, then and in that event you should find for the plaintiff, unless you find for the defendant under the instructions hereinafter givenJ^ (4) The court instructs the jury that if you find from the evidence that defendant's roadbed and bridge at the point where plaintiff was injured (if you find he was injured) was not on , 19 — , commonly, usually, and customarily used by the pub- lic as a footpath, or if you find that it was not so used with the knowledge and consent or acquiescence or permission of the defendant, or you find from the evidence that the plaintiff on the night and at the time in question had become drunk or par- tially drunk from the voluntary use of intoxicating liquor, and when struck by the engine was lying down and was asleep on defendant's track, then you should find for defendant.'* (5) The court instructs the jury that the defendant had the "Missouri &c. R. Co. v. Malone "Missouri &c. R. Co. v. Malone (Tex. Civ. App.), 110 S. W. 9S8. (Tex. Civ. App,), 110 S. W. 958. 865 RAILROADS. § 78 right of the unobstructed use of its tracks in its yards at ■ for the passage of its switch engine and cars that were being switched in its said yards ; and unless you beheve from the evi- dence that there had, prior to the time of the accident, been such common, notorious, and habitual use of its yards at the place in said yards where the accident occurred as a path or foot- way by the public that the defendant would, in the exercise of ordinary care, have had notice thereof, then there was no ob- ligation upon defendant as to the plaintiff to keep a lookout for him to discover his peril, if he was in a perilous position. Un- less you believe from the evidence that the public had notoriously, commonly, and habitually used the tracks and yards at the point in the yard where the accident occurred, as a pass or footway in such manner and for such length of time that the defendant ought reasonably to have known and anticipated such use, then you are charged that the defendant's servants in charge of the engine would have been justified in assuming that the track was unobstructed by footmen, and, if you so believe, you will find for the defendant on the issue here submitted.*" (6) The court instructs the jury that if you believe from the evidence that A. B. was struck and injured on , , by an engine of the defendant, Railway Company, while walking or standing on or near its track, near H., and if you further believe from the evidence that for a long time prior thereto that portion of the defendant's track on which the said A. B. was traveling, if you find that he was traveling on said occasion, was and has been commonly and habitually used by the public as a pathway for travel by pedestrians with the knowl- edge and acquiescence of said defendant, and if you further believe from the evidence that the said A. B. did not discover the approach of the train in time to avoid being struck by an engine, if you find that he was so struck, and if you further believe from the evidence that persons of ordinary prudence filling the respective positions of engineer and fireman on said ™St. Louis Southwestern R. Co. v. Driver (Tex. Civ. App.), 137 S. W. 409. SS — Branson's Inst. § 7^5 INSTRUCTIONS FORMS. 866 engine would, under the same circumstances, have been on the lookout for pedestrians on said track at the place where the said A. B. was traveling, if you find he was traveling, before he was struck, and could and would have discovered that the said A. B. was on the track sooner than defendant's said engineer and fireman made such discovery, if any, and after making such discovery, if any, could and would have sounded signals of the bell and whistle, or either, at such time and in such manner as to warn the said A. B. of the approach of the train in time to have enabled him to leave the track before being struck by its engine, if you find that he was so struck, then you will find that the failure of the engineer and the fireman to make such discovery, if any, and to sound such warnings, was negligence, and if you so find, and if you further believe and find that such negligence, if any, was the proximate cause of the death of the said A. B., then you will return a verdict in favor of the plain- tiffs against the Railway Company, unless you find for it under some other paragraph of this charge.*^ (7) The court instructs the jury that if you find by a pre- ponderance of the evidence in this case that the place at which the plaintiff was injured was a place which, by reason of its situation and the conditions surrounding it, and the usage made of it to the knowledge of the defendants, as shown by the testi- mony, was such a place that the presence of people thereat, might be reasonably anticipated, by the defendants in this action, then you are instructed that the defendants were under a duty, in operating engines, cars, and trains thereat, to be on the lookout for such people at said place, and to give timely warning of the approach of trains thereat, and that the failure to do so on the part of the defendants, if you find by a preponderance of the testimony there was such a failure, would constitute negli- gence; and if you further find, by a preponderance of the evi- dence, that such failure was the proximate cause of the injury to the plaintiff in this action — that is to say, if you find, by a "Ft. Worth &c. R. Co. v. Broom- head (Tex. Civ. App.), 140 S. W. 820. 857 RAILROADS. § 786 preponderance of the evidence, that except for such failure the plaintiff would not have been injured — ^then the court charges you that the plaintiff would be entitled to recover in this action, unless you find that she was guilty of contributory negligence (that is, such negligence that except for it the plaintiff would not have been injured) ; or unless you find that, notwithstanding such contributory negligence on the part of the plaintiff, the defendants discovered the plaintiff in a position of peril in time, by the exercise of ordinary care upon their part, to have pre- vented the injury to the plaintiff, and that such failure to ex- ercise ordinary care on the part of the defendants was the prox- imate cause of the injury to the plaintiff (that is, that except for such failure plaintiff would not have been injured ).^^ (8) The court instructs the jury that if they believe from the evidence that the place at which the accident complained of occurred had been in daily use as a walkway or crossway for a long time by a large number of persons in that vicinity, and that its use was well known to the defendant, it was then the duty of the defendant company to use reasonable care to discover W. A. C, if on the cross-ties of the track on which the train was proceeding and in danger at the time mentioned, and that if the said defendant did not use such care, and that by its fail- ure so to do the said accident occurred, then they must find for the plaintiff, even though the said plaintiff was guilty of con- tributory negligence, provided they believe from the evidence that the servants of the said defendant in charge of its engine did not do all they could consistently with their own safety to avoid the injury after the sa-id danger to the said W. A. C. was known, or might have been discovered by the said serv- ants of the defendant by the exercise of ordinary care in keeping a lookout for persons at the point where the accident occurred.*^ § 786. Injuries to trespasser on railroad premises. — ( 1 ) The court instructs the jury that if you find from the evidence that the plaintiff quit work or resigned, and had been paid off and ''Kyne v. Southern Pac. R. Co. ''Norfolk &c. R. Co. v. Carr, 106 (Utah), 126 Pac. 311. Va. 508, 56 S. E. 276. § 7S6 INSTRUCTIONS FORMS. 868 given the necessary time check and identification by the Company a day or two before the accident, and had failed to leave within a reasonable time, and was a mere loiterer about the station of said company, then and in that case said plaintiff was a trespasser on the grounds of said defendant, and said de- fendant owed him no duty or care other than not to wilfully, recklessly, or mahciously injure him; and, unless you find by a preponderance of the evidence that they did so injure him, your verdict should be for the defendant, the Company.** (2) The court instructs the jury that if you believe from the evidence, that at the time of plaintiff's injury he was com- mitting a trespass by remaining on the grounds or premises of the defendant more than a reasonable time after quitting work, still, if you further find from the evidence that the plaintiff did not intend to commit any trespass, or that the trespass was purely technical and only such as he might reasonably expect the de- fendant would permit without any objection, and that in fact it did not cause any appreciable annoyance or injury to the de- fendant, then his recovery will not be prevented by reason of such trespass, provided you find, by a preponderance of all the evidence, that his injuries were caused by the negligence of de- fendant as alleged, and without negligence on his part proxi- mately contributing thereto.*^ (3) The court instructs the jury that if you believe from the evidence in the case that the plaintiff had no legar right to be where he was on the premises of the Company at the time of the alleged injury, still no one would be justified in wil- fully or recklessly injuring him; and I therefore charge you that if you believe from the evidence that the person or persons having charge or control of the engine in question, while so in the employ of the defendant company, acted in such a careless and reckless manner as would indicate a disregard of the con- sequences of his or their acts, and by reason of such negligence the plaintiff was injured, as alleged in his complaint, and without any negligence of the plaintiff proximately contributing thereto, "Hern v. Southern Pac. Co., 29 "'Hern v. Southern Pac. Co., 29 Utah 127, 81 Pac. 902. Utah 127, 81 Pac. 902. 869 RAILROADS. § 787 then the plaintiff would be entitled to recover in this action for the injuries sustained.*" (4) The court instructs the jury that if you find that said plaintiff had ceased to work, or resigned, and had been given his time check and identification a day or two before the accident, and instead of taking the train or some passing train to , or wherever he may have desired to go, elected to hang around or loiter around the station at , and not with the immediate purpose of taking passage on any train at or passing , then said plaintiff was not at the time a passenger on said line of road; and unless you find that said defendant, the Com- pany, wilfully, wantonly, or recklessly injured plaintiff, your verdict must be for defendant.*^ § 787. Injuries to trespassers riding on engines. — The court instructs the jury that if you believe from the evidence in this case that just prior to the accident, which resulted in the death of R. H., that the said R. H. was riding on the engine of defendant by standing on the steps and holding to the hand- holds on said engine, and that the engineer and fireman on said engine knew of his presence there, and that when the said R. H. dismounted from said engine he stepped backward on the main line of defendant, immediately in front of a moving caboose with one or more box cars attached thereto, and that the brake- man on said caboose in the exercise of ordinary care discovered said deceased upon said main line of defendant in a place of peril, but that the distance from the place of the caboose at' the time said brakeman so discovered said H. was so short that it was impossible to prevent injuring him, by the use of ordinary care in the use of the means at hand to avoid injuring the said H., if you believe he did exercise such care, then your verdict will be for the defendant.*' "■ Hern v. Southern Pac. Co., 29 " St. Louis Southwestern R. Co. v. Utah 127, 81 Pac. 902. Hunt, 45 Tex. Civ. App. 401, 100 S. " Hern v. Southern Pac. Co., 29 W. 968. Utah 127, 81 Pac. 902. § 788 INSTRUCTIONS FORMS. 870 § 788. Injuries to persons loading or unloading cars. — (i) The court instructs the jury that it is the duty of one en- gaged in dangerous work to adopt that method which is the least dangerous; hence under some phases of this case it might be- come an important inquiry on your part as to which was the less dangerous — scaling upon the cars or upon the ground. Again, however you resolve that question, it would necessarily be im- portant to find whether the defendant, through the defects in the tongs or failure to use the bunching chain for hoisting logs, was guilty of negligence, and, if so, did the deceased in per- forming his duties observe those precautions which ordinarily prudent men observe to guard against consequences which might naturally be expected to result? If the danger would have been perfectly apparent to a reasonably careful and prudent man, and the deceased could by the use of ordinary care himself have avoided the injury and still have performed his duties, then, as you have already been advised, there could be no recovery.^" (2) The court instructs the jury that if they believe from all the evidence that the defendant railway company furnished G. F. the car in which the plaintiff was at work for the pur- pose of loading and shipping tan bark, or permitted said car to be so used, and that the plaintiff under his employment to help load tan bark on said car was engaged in his duties of pre- paring said car for shipment of said tan bark, and that while so engaged the defendant by its employes carelessly and negli- gently ran one or more cars against or carelessly or negligently permitted the same to run onto or against the car in which the plaintiff was so engaged, and thereby inflicted personal injury upon the plaintiff, then they will find for him such a reasonable sum in damages, if any, as they may believe frotn the evidence he has sustained in efforts to get cured, including any expense that it is reasonably certain he will hereafter necessarily incur, if any, not exceeding $ ; also the fair value of the time lost by him, if any, or which it is reasonably certain he will here- after lose, if any; and a fair compensation for the mental and physical suffering, if any, endured by him or which it is reason- *» Idaho &c. R. Co. v. Wall, 184 Fed. 677. 8/1 RAILROADS. § 788 ably certain he will endure; also for the permanent reduction of his power to earn money — not exceeding $ ."'' (3) The court instructs the jury that if they beheve from the evidence that the defendant, the Railway Company, placed one of its cars on one of its side-tracks to be loaded with ties by one C. W. and workmen under him, and that when the plaintiff, E. C, was on said car, or getting onto it to do said work, as one of said workmen, it was, through the negligence of the defendant, or its agents or employes, in operating same, struck by another car or cars of the defendant, in consequence of which the plaintiff was knocked down and injured, then the law is for the plaintiff and the jury will so find unless they further believe from the evidence that at the time of the alleged injury the plaintiff was so negligent of his own safety that but for such negligence it would not have happened, in which event they will find for the defendant."^ (4) The court instructs the jury that if you believe from the evidence that at the time and place as alleged by plaintiff while engaged in loading chops in the cars of defendant, and that the plaintiff with others who were assisting in loading said chops remained in said car where they were at work waiting as alleged by plaintiff for the same to be replaced at its proper place so that they could continue loading of said car, and that while said car was standing on the switch or the side-tracks of defendant, and if you beheve from the evidence at said time the agents and servants of defendant in charge of the engine attached to cars knew of the presence of plaintiff in said car, caused said engine or engine and car attached to it to run against and come in -contact with the car that plaintiff was in, with such force that plaintiff was thrown from the top of the sacks of chops, which had been loaded into said car, and to and upon the floor thereof, and he was thereby injured as alleged, and if you believe from the evidence that defendant's agents and servants caused said engine or engine and car to run against and come in contact with the car plaintiff was in, and in so °° Chesapeake &c, R. Co. v. Plum- "Chesapeake &c. R. Co. v. Conley, mer, 143 Ky. 97, 136 S. W. 159. 136 Ky. 601, 124 S. W. 861. § 789 INSTRUCTIONS FORMS. 872 doing defendant's agents or servants failed to exercise that de- gree of care that an ordinarily careful and prudent person would have exercised under the same or similar circumstances, and as 9, proximate result of said failure, if any, plaintiff was injured in either or all the ways alleged in his petition, then you will find for the plaintiff, unless you find for the defendant under subsequent portions of this charge.'^ § 789. Injuries to persons at work on premises of others. — (i) The court instructs the jury that if you find and beheve from the evidence that plaintiff, G. S., was, on the occasion in question, at work in the premises of the defendant, the Car Company, in the construction of a shed, and engaged with other employes of B. & R. in hoisting or raising a wooden girder to the top of some posts forming part of the framework of said shed, and that plaintiff was at the time, standing on a piece of wood nailed at or near the top of one of said posts; and if you further find and believe from the evidence that the de- fendant, the Car Company, at the time maintained a private railroad track and operated an electric car thereon near to the post on which the plaintiff was at the time engaged ; and if you further find and believe from the evidence that while the plaintiff and his fellow workmen were engaged in hoisting said girder by ropes and other means, and while the same was in mid-air alongside of the said post, the end thereof to the north projected beyond the post on which the plaintiff was standing and toward the said railroad track of the defendant, and that while said girder -was in said position, and without any fault or negligence on the part of the plaintiff or his fellow workmen engaged with him in the said work, the said girder was struck by the said electric car of the defendant, and that it was so struck by reason of the carelessness or negligence of the servant of said defendant then and there having charge and control of said car; and if you further find and believe from the evidence that the consequence of such striking of said girder the post on which the plaintiff was at work was struck by said girder and knocked to the "'Missouri &c. R. Co. v. Morin (Tex. Civ. App.), 144 S. W. 1191. 873 RAILROADS. § 789 ground, and that plaintiff was thrown to the ground on account thereof, and sustained the injuries complained of — then you should find a verdict in favor of the plaintiff. °' (2) The court instructs the jury that, although they may believe that the car which caused the injury, if any, to plaintiff, was standing on the track of defendant's road a short distance from where plaintiff was at work, and that plaintiff may have seen a person get onto the car and take charge of it, yet if the jury further believe that the plaintiff and the work he was en- gaged in doing was in plain sight of said person taking charge of the car, then plaintiff had a right to assume that said person saw him and the work at which he was engaged, and that he would exercise ordinary care in the operation of the car. And if the jury further believe that at the time the said car was started by the said person in charge thereof from its said stand- ing position, the plaintiff was on or near the top of the post situated near the track on which said car was operated, engaged in hoisting a timber to the top of said post, and that said timber projected over or toward the said track, or that by any swinging motion thereof it might extend over or toward said track so as to come in either case in contact with any car run along said track, and that the said person in charge of said car either did see, or by the exercise of ordinary care might have seen, that by running said car along said track said car would come in contact with said timber, or be in danger of com- ing in contact therewith, then said person in charge of said car was negligent, if the jury believe he run said car along said track so as to come in contact with said timber. And if the jury further believe that the said person in charge of said car was an employe of defendant, and in the discharge of his ordinary duty as such employe, while in charge of said car, and that he did run said car and come in contact with said tim- ber under the circumstances hereinbefore detailed, and that by said car so coming in contact with said timber plaintiff was thrown to the ground and injured, without any negligence on his part, then the verdict must be for the plaintiff.'* ■"Sack V. St. Louis Car Co., 112 "Sack v. St. Louis Car Co., 112 Mo. App. 476, 87 S. W. 79. Mo. App. 476, 87 S. W. 79. § 790 INSTRUCTIONS— FORMS. 874 § 790. Injuries caused by escaping steam. — The court in- structs the jury that the plaintiff must estabHsh by a prepon- derance of the evidence that the escape of steam from the en- gine at the time and place and under the circumstances shown by the evidence was the result of some act or omission of an employe or employes of the defendant company which such em- ploye or employes could have controlled. Before you are war- ranted in finding a verdict for the plaintiff in this case, it must appear from the evidence not only that the steam was permitted to escape from the engine, and that the escape of such steam was a matter under the control of the employes, but it must be shown further that the escape of such steam at the time and place and under the circumstances shown by the evidence was both unusual and unnecessary, or that it was recklessly and wantonly done, or with the intention of frightening plaintiff's team. You are further instructed that the defendant railway company has the right to operate its railroad and make the usual noises and permit the usual escape of steam from its engine which are incident to the use of such engine. The court further instructs you that negligence upon the part of the defendant company can not be inferred from the mere fact that this acci- dent happened, nor from the fact that steam escaped or was per- mitted to escape from the engine. The plaintiff must further show that the escape of steam at the time and place, and under the circumstances shown by the evidence in the case, was not in the exercise of ordinary care and prudence.*' § 791. Frightening horses by operation of train. — (1) The court instructs the jury that if they find from the testimony in this case that at the time the engineer sounded the whistle, as alleged in the complaint, he did not know that C.'s horse was frightened, or if you find from the testimony that at the time the horse, although previously frightened, was apparently under the control of C, then it was not the duty of the engineer to abstain from sounding the whistle as required by law, and the defendant would not be liable, unless you find that the fireman °= Hickey v. Rio Grande Western R. Co., 29 Utah 392, 82 Pac. 29. 875 RAILROADS. § 792 had knowledge of the danger, and that it was his duty to notify the engineer not to blow the whistle, and he failed to so notify him.'' (2) The court instructs the jury that if you find and believe from the evidence that the plaintiff was injured by reason of the defendant's engine emitting or "popping off" steam as it passed over the crossing in front of the team behind which plaintiff was riding and traveling at the time of the accident, and fright- ening the said team behind which the plaintiff was riding at the time of the accident, but if you further believe that such emission or "popping off" of steam was not occasioned by the engineer, or by any of defendant's employes in charge of its engine at the time, but that such emission or "popping off" of steam was occasioned merely by the escape of steam through a proper, usual, and necessary apparatus for the escape of an excess of steam, and that such noise or emission or "popping off" of steam was usual and incident to the use of its engine while under the proper amount of steam, and used in its ordinary manner, then you will find for the defendant, provided you believe that such emission or "popping off" of steam was the sole cause of the fright of the team and of plaintiff's injuries, if any.'' § 792. Injuries from mail cranes. — The court instructs the jury that if they believe from the evidence that the defendant company had constructed its main line and siding in a careful and reasonable way for the conduct of its business and safety of its employes and passengers, and others properly using said sidings and in the way usual by all railroads, before a contract was made with the Post-office Department to carry mail on its trains, and that the officials of the Post-office Department desig- nated the plans for constructing a mail crane at P. C, and that it was properly constructed at such place and was used with safety for years, the mere fact that there may have been points along the line where an extended mail arm or catcher from a postal car would interfere with freight or other cars on the '"Choctaw &c. R. Co. v. Coker, 89 "Texas &c. R. Co. v. Hemphill Ark. 270, 116 S. W. 216. (Tex. Civ. App.), 125 S. W. 340. § 793 INSTRUCTIONS; FORMS. 876 siding near the glass house does not show negligence on the part of the defendant if ordinary prudence of said defendant's officials in operating their road did not disclose to them that there would be danger at such point where mail was to be caught — as a matter of law it can not be expected that main tracks and sidings must be constructed on railroads so that a mail catcher from passing postal cars will never strike a car on such side-track, but it is required that reasonable space shall be kept clear in approaching the said mail crane from either di- rection along the line of said road ; and, if reasonable clearance was provided for the siding at P. C. and said siding was so far removed from the mail crane as in no reasonable way to cause danger of interference with a car on such siding and said rail- road company were not otherwise negligent, the jury must find for the defendant.'* § 793. Collision between trains at crossings. — ( 1 ) The court instructs the jury that the law requires that all trains upon any railroad in this state [Illinois] which crosses or intersects or is crossed by any other railroad, upon the some level, shall be brought to a full stop at a distance not less than two hundred feet nor more than eight hundred feet from the point of inter- section or crossing of such road. And if the jury find from the evidence that the train of the Railway Company, under the charge of the deceased, as conductor of said train, was not brought to a full stop at a distance of more than two hun- dred feet from the crossing of the tracks of the Railway Company, and if you further believe, from the evidence, that the failure to stop said train at said distance from said crossing contributed to the injury complained of, or if you believe, from the evidence, that had said train been brought to a full stop at said distance from said crossing the collision would have been avoided, then you must find for the defendant, the Rail- way Company.'" (2) The court instructs the jury that if you find, from the "'Baltimore &c. R. Co. v. Hoskin- '"Chicago &c. R. Co. v. Snyder, 117 son, 211 Fed. 574. 111. 376, 7 N. E. 604. 877 RAILROADS. § 794 evidence, that the semaphore signal was first given to the train of the Railway Company going west, to make such cross- ing, and that, after such train had made the crossing the sema- phore sfgnal was then given to the train of the Railway Company to proceed and make the crossing, and was not given to the train of the Railway Company going east, you will find for the defendant, the Railway Company.^ § 794. Care after discovery of perilous position of person on track. — (1) The court instructs the jury that the plain- tiff's intestate, it is admitted, was upon the bridge of the de- fendant company. He was himself negligent in being there. He was a trespasser. Under those circumstances the company, or its employes, who conducted its train, owed him no duty until they discovered him in peril, if he was. When they did discover him in peril, if he was in peril, they owed to him the duty not to wantonly injure him.^ (2) The court instructs the jury that if you find from the evidence that after discovering the plaintiff upon the tracks, the servants of the defendant did not sound alarm signals, either by whistle or the bell upon the engine, until it was too late for the plaintiff to escape from the railroad track before being struck, then you should find the defendant guilty of negligence.® (3) The court instructs the jury that if they believe from the evidence that the defendant's engineer in charge of said engine, after discovering the plaintiff's presence on the highway on the occasion in controversy, saw or by the use of ordinary care could have seen that his horse was frightened, and if the jury further believe from the evidence that the circumstance was such as to lead an ordinarily prudent person, situated as the engineer was, to believe that the horse would attempt to cross the track in front of the train or would come in collision with the train, and that the said engineer, after so seeing the plaintiff, failed to use ordinary care to stop the train or to prevent injury to 'Chicago &c. R. Co. v. Snyder, 117 'Denbeigh v. Oregon-Washington 111. 376, 7 N. E. 604. R. &c. Co., 23 Idaho 663, 132 Pac. "Chesapeake &c. R. Co. v. Haw- 112. kins, 187 Fed. 568. § 794 INSTRUCTIONS FORMS. 878 the plaintiff, and that the plaintiff was injured as the direct and natural result of said failure on the part of said engineer, then and in that event the jury will find for the plaintiff; and unless the jury so believe as set out in this instruction, they will find for the defendant.* (4) The court instructs the jury that if the engineer applied the brakes when he first saw the horse and buggy approach the crossing, and then released them when the horse stopped and stood near the crossing, apparently under the control of the driver, and the horse did not start to cross the track until it was too late to stop the train and prevent the collision, and the en- gineer then did all that could be done to stop the train, the defendant was not guilty of any negligence, and they should so find.' (5) The court instructs the jury that if you believe from the evidence that the engineer in charge of the engine in ques- tion, after he discovered J. M. upon the track, failed to use or- dinary care in the exercise of all reasonable means at his com- mand, consistent with the safety of the train, to avoid injuring him, and by reason of such failure the said M. lost his life, the law is for the plaintiff, and the jury should so find." (6) The court instructs the jury that unless they believe from the evidence that, after the discovery of M.'s peril, the engineer failed to use ordinary care in the exercise of all reasonable means at his command to avoid injury to him, consistent with the safety of the train, and by reason of such failure M. lost his life, the jury should find for the defendant.'' (7) The court instructs the jury that if you shall believe from the evidence in this case that the engineer in charge of said en- *This instruction was criticized be- jury is specifically called on to deter- cause of tlie court's failure to insert, mine." Louisville &c. R. Co. v. Al- after the clause, "after so seeing the len, 1S3 Ky. 252, 154 S. W. 1095. plaintiff," the words, "if he did see ° Baker v. Norfolk &c. R. Co., 144 him." The reviewing court says: N. Car. 36, 56 S. E. 553. "While the words referred to might "Chesapeake &c. R. Co. v. Montjoy, with propriety have been inserted in 148 Ky. 279, 146 S. W. 371. the instruction, their omission was ' Chesapeake &c. R. Co. v. Montjoy, not error. * * * An instruction 148 Ky. 279, 146 S. W. 371. does not assume a fact which the 879 RAILROADS. § 794 gine and train did discover the plaintiff on said trestle, and her perilous position thereon, and shall further believe from the evidence that, by the exercise of ordinary care — that is to say, by the use of all reasonable means then at his command, and consistent virith the safety of said engine and train and those in charge thereof — he could have stopped or checked said engine and train in time to have avoided the injury to plaintiff, then the law is for the plaintiff.* (8) The court instructs the jury that if you believe from the evidence that when the engine that killed plaintiff's wife was approaching the public crossing of the public road on said occasion the employes of defendant operating said train saw the plaintiff's wife and other occupants in an automobile near defendant's track at said crossing, driving toward said crossing, and that it reasonably appeared to said employes that the plaintiff's wife and other occupants of said automobile would not probably stop before they reached said track, and would not pass over the same in time to avoid a collision with said train, and were in imminent peril of being struck by said train, and you further believe from the evidence that said employes, after making such discovery, if they did, failed to use all the means they had at hand, consistent with the safety of said en- gine and train, to stop the train and prevent a collision, and if you believe from the evidence that by the use of all the means that they had at hand for stopping said engine and train, con- sistent with the safety thereof, they could have stopped the same after they made such discovery, if they made it, or so reduced the speed thereof as to avoid collision with said auto- mobile and its occupants, including plaintiff's wife, then if you so find, you will return a verdict in favor of the plaintiff, even though you may believe the plaintiff's wife and other occupants of said automobile, or any of them, were guilty of contribu- tory negligence in the manner in which they approached and drove upon said crossing." (9) The court instructs the jury that if the engineer failed 'Prince v. Illinois Cent. R. Co. "Texas Cent. R. Co. v. Dumas (Ky), 99 S. W. 293. (Tex. Civ. App.), 149 S. W. 543. § 795 INSTRUCTIONS FORMS. 88o to see and warn M., and failed to endeavor to stop or reduce the speed of the train when by the exercise of due care he could or should have done so, and that M. failed to see the approach- ing train when by the exercise of due care he could have done so, and prevented the collision, then the jury must find for the defendant.^" § 795. Right of engineer to assume that person on track will step aside in time to avoid injury. — (1) The court in- structs the jury that, as a matter of. law, if he passed beyond the cross-ties, the question of liability in the case, if he stepped from the side of the track at all, would depend upon the distance that he stepped to one side of the track, under all the circumstances of the case. If the employes running a railroad train see a person ahead on the track as an obstruction, and sound the alarm, and he seeing it, or for any other reason, on learning that the train is approaching, steps from the track, completely out of striking distance, and into a position of safety, and then afterwards from some other reason falls against the train, the railway company would not be liable. In other words, the railway company has to take every precaution under the statute to avoid the accident ; but, if a person has stepped from the track beyond striking distance and in a place where there is no danger, then of course the rail- way company does not have to stop its train. It may go on and carry its passengers or discharge the mission on which it is en- gaged. But I charge you, gentlemen, that passing outside of striking distance, within the rule that I have laid down, so as to excuse the railway company from further observation of the statutory precautions, does not simply mean passing to merely an inch beyond where a person could be struck, if he was stand- ing still ; it does not mean simply passing beyond where he could be barely struck by the front of the train if he was standing ab- solutely still. In other words, a person does not pass out of strik- ing distance, so as to excuse the railway from observing the stat- utory precautions, while he is still so close to the track that, having due regard for the instinct of self-preservation and the in- voluntary movements of the body, there is still a reasonable prob- " Morton v. Southern R. Co., 112 Va. 398, 71 S. E. 561. 88 1 RAILROADS. § 795 ability or likelihood that he may fall or be thrown against the side of the engine or train as it passes him; and, so long as he has not passed to such a distance from the track as to be safely out of striking distance, so that, all things being considered, the speed of the train, distance, etc., there is no reasonable prob- ability of his falling, or being thrown against the side of the train as it passes him in its onward motion, he is not outside of striking distance in such sense as to justify the railway in ceas- ing to observe the statutory precautions. Of course, as I have said, if he had passed to such a distance from the track that there was no reasonable probability or likelihood that he might not, in the exercise of the instinct of self-preservation, have fallen or been thrown against the train as it passed him, then the railway was absolved from further duty. That is the question which you will have to consider, even if you shall find that when he was struck he was not actually on the cross-ties, namely: Had he passed outside of striking distance, as I have defined it, before the railway employes stopped using the statutory precautions? The burden of proof on that point is on the railway. It must show by a preponderance of the evidence, in order to justify it in the action of its employes in not going ahead in their effort to stop the train, that he had passed to such a distance from the track. If it has shown you by a preponderance of the evi- dence, and you believe from a preponderance of the evidence that he had passed to such a distance from the track, then I charge you that there is no liability whatever in this case, and it would be your duty to return a verdict for the defendant. If you find that he had not passed to that distance and was struck by the train as a result of that failure and by being still within that dis- tance while the train was going ahead, and that on account of his being still within that distance he fell or was thrown against the side of the engine, there would be liability on the part of the rail- way company." (2) The court instructs the jury that where an engineer sees a boy or boys upon the railroad track ahead of the train and sounds the whistle to warn them of the approach of the train, he has a right to presume, until their actions indicate the con- " Southern R. Co. v. Sutton, 179 Fed. 471. 56 — Br.'\nson's Inst. § 795 INSTRUCTIONS FORMS. 882 trary, that they will heed said alarm and get off the track in time to prevent being struck by the train." (3) The court instructs the jury that if the plaintiff was walk- ing between the tracks, and in a position where he was not in danger, the defendant was not required to anticipate that he would put himself in a position of peril, but had the right to as- sume that he would keep out of danger.^* (4) The court instructs the jury that the law is different as to a dumb animal and a human being, because of the intelligence of the human being. If a human being is upon or near a track, and apparently in possession of his senses, the engineer is justi- fied in assuming that such person will use his faculties for his own safety and get out of the way, and he would not be required to stop or slack his speed.^° (5) The court instructs the jury that if you find that (name of decedent) was in a place of safety before he stepped on to the track and when the engineer first discovered him, then the engineer had the right to presume that he would not go on the track in front of an approaching train, and the engineer was not required to make any effort to stop said train until he discovered that said (name of decedent) intended to or was starting to go on to the track. And the engineer had the right to presume that the said (name of decedent) possessed reasonable intel- ligence sufficient to avoid danger, in the absence of evidence that the engineer knew the said (name of decedent) was men- tally deranged or of unsound mind.^° (6) The court instructs the jury that if you believe from the evidence in the case that the plaintiff was not on the track in front " The instruction as requested did " This instruction was modified by not include the clause, "until their ac- the trial court by the addition of the tions indicate the contrary," the following clause: "Provided the clause being inserted by the court, train was not being run at a greater This modification was held to be rate of speed than ten miles per hour proper. St. Louis &c. R. Co. v. [the rate of speed prescribed by ordi- Scott, 102 Ark. 417, 144 S. W. 917. nance]." It was held that the in- "Boulden v. Louisville &c. R. Co. struction should have been given in (Ky.), 112 S. W. 926. its original form. Jackson v. Kansas " Stewart v. North Carolina R. Co., City &c. R. Co., 157 Mo. 621, 58 S. W. 136 N. Car. 385, 48 S. E. 793. 32, 80 Am. St. 650. 883 RAILROADS. § 796 of the engine when it approached from the west, at the time of the accident, but was on the outside and north of said track, then the employes in charge of said engine were not bound to know or anticipate that there was any danger of his being hurt; and if the jury further believe from the evidence of this case that plaintiff was not on the track at the time he was hurt, but was outside of the track, and that he had a string tied to his arm, the other end of which was attached to a piece of ice, and if the jury believe that the passing engine caught the ice or string, and thereby caused the plaintiff's injury, and that fact is the sole cause of the accident, then the plaintiff is not entitled to recover, and the verdict will be for the defendant.^' (7) The court instructs the jury that if you find that deceased was in peril, and such peril was discovered by the servants op- erating the ballast car and engine, then said servants had the right to presume that said deceased would get off the track unless it became apparent to them he would not do so. Now if you find that defendant, through the servants operating the engine and ballast car, saw deceased on the track, and in danger, and they warned him, and you fail to find said servants realized that he would not get off the track or out of the way in time by the exer- cise of ordinary care to have avoided injuring him, after such warning, you will find for the defendant.^^ (8) The court instructs the jury that if they believe that J. P. failed. to exercise ordinary care for his own safety, and you fur- ther find that defendant's servants in charge of the engine did not have reasonable ground to believe that he would not get off the track to avoid being run over, and that such servants in charge of the engine used reasonable care to stop the train, and avoid run- ning against deceased, after it became manifest that deceased did not intend to get off the track, that the verdict should be for the defendant.^' § 796. Duty of engineer where signals not heard or heeded. — (1) The court instructs the jury that those in " Spillane v. Missouri Pac. R. Co., " Pecos &c. R. Co. v. Rosenbloom 13S Mo. 414, 2>1 S. W. 198, 58 Am. St. (Tex. Civ. App.), 141 S. W. 17S. 580. "Texas &c. R. Co. v. Patterson, 46 Tex. Civ. App. 292, 102 S. W. 138. § 79^ INSTRUCTIONS FORMS. 884 charge of defendant's engine were under no duty to stop or check it unless the conduct of the plaintiff, when they saw or by the exercise of ordinary care could have seen him, was such as to lead an ordinarily prudent person to believe that he did not know of the approach of the engine and intended to go or to remain upon the track, but it was their duty to make an effort to stop the engine when they saw, or by the exercise of ordinary care could have seen, that fact, if you believe it to be a fact from the evidence in this case.^° (2) The court instructs the jury that if you should find from the testimony that the engineer did discover the plaintiff when the train or engine was some or — '■ — feet west of the cross- ing, and that he discovered that the plaintiff at the same time was not observing the train, and apparently did not see or notice the train, but was approaching the railway track and crossing as if unconscious of the approach of the train, then it would be the duty of the engineer to immediately give signals of warning that he might make known to her, if possible, the near approach of the train. And if you find that condition of things, and he did not do so immediately, it would be negligence on the part of the en- gineer and the defendant, as the engineer was its servant.^'- (3) The court instructs the jury that if you find that the de- fendant F. saw the deceased upon the track, and saw that for any reason he was not making an effort to leave it after the usual warning of the approach of the train had been given by blowing the whistles, and he could by the exercise of all reasonable care, after he recognized or ought in the exercise of reasonable care to have recognized that the deceased was apparently oblivious of his danger, have stopped the train in time to have avoided striking him, the negligence of the deceased in going upon the track or in not leaving it after being warned, will not prevent a recovery in this case.^^ (4) The court instructs the jury that it was the duty of the engineer if he saw the deceased on the track to give the usual " Bauer v. Illinois Cent. R. Co., 156 '' Neary v. Northern Pac. R. Co., Ky. 183, 160 S. W. 933. 41 Mont. 480, 110 Pac. 226. "Weiss V. Great Northern R. Co., 119 Minn. 3SS, 138 N. W. 423. 885 RAILROADS. § 797 warning signals, at such a distance as that if they should not be heeded there would remain time, considering the speed at which the train was going, to stop it before striking the deceased. If accordingly you find that after discovering that the deceased did not heed the signals given the defendant F. was not able with the means at his command to stop the train in time to avoid the casualty, you will consider whether he ought not in the exercise of reasonable care to have given the signals earlier, and if he ought to have done so, and had he done so, he would have been able to make a timely stop, the defense of contributory negli- gence is not available to defendants, and your verdict should be returned accordingly.^^ §797. Contributory negligence of injured party. — (1) The court instructs the jury that, even if it should be proven that the defendant company occupied or blocked the road crossing in question by the switching of its engine or cars an inconvenient, or unreasonable length of time, yet as a matter of law such action on the part of defendant would not justify or excuse the plaintiff for unnecessarily going into a place of danger; and if the jury believe from a preponderance of the testimony that the plaintiff, while the defendant company had said crossing occupied in switch- ing back and forth, attempted to cross the track of defendant, and thereby put himself in a place of obvious danger and was in- jured, then he was guilty of contributory negligence, and your verdict should be for the defendant.^* (2) The court instructs the jury that contributory negligence is the want of that care which the law requires of a plaintiff un- der the circumstances, and which causes or contributes to the in- jury sued for. Now, the question for you is, what care for his own safety did the law require of the plaintiff? On that subject I tell you that the law required of him that he should, before attempting to cross the railroad track, listen and look both ways, up and down the track, for approaching trains, and to continue to so look and listen until the crossing was passed, and if he failed "^Neary v. Northern Pac. R. Co., ** Louisiana &c. R. Co. v. Ratcliffe, 41 Mont. 480, 110 Pac. 226. 88 Ark. 524, IIS S. W. 396. S 797 INSTRUCTIONS FORMS. 886 to do so, and such failure caused or contributed to his injury, he can not recover.^" (3) The court instructs the jury that, the plaintifif under the law was bound to use ordinary care as he approached and at- tempted to cross defendant's tracks at T. avenue, and if the evi- dence shows that as he approached and attempted to cross said track he exercised that degree of care that an ordinarily prudent person would have exercised under all the circumstances sur- rounding him, as shown by all the evidence in this case, and was unable to hear and see the locomotive engine approaching, until it was too late to avoid a collision, then he was not guilty of con- tributory negligence.^^ (4) The court instructs the jury that it was the duty of the decedent, F. W., in approaching the tracks of the defendant rail- way company, and in attempting to cross the same, to use such care as may be usually expected of an ordinarily prudent person, under like or similar circumstances, to learn of the approach of the train and to keep out of its way ; and if they believe from the evidence that the said F. W. failed to exercise such care for his safety, and but for such failure, if any, upon his own part, he would not have been injured, then the law is for the defendants, and the jury should so find even though they may believe from the evidence that the defendants or its employes were negligent as set out in instruction No. P (5) The court instructs the jury that it was the duty of the plaintifif in passing along G. street and approaching its intersec- tion with the railroad track on F. street to exercise ordinary care for his own safety, and in the exercise of such care it was the duty of plaintifif not to pass under or beyond the crossing gates, if they had been lowered before he reached said intersection. It was also plaintiff's duty, in the exercise of ordinary care for his ^ St. Louis &c. R. Co. V. Dillard, 78 ^° Not erroneous when taken in Ark. S20, 94 S. W. 617. For similar connection with another instruction instructions, see also Illinois Central "upon the subject of using his senses, R. Co. V. Bethea, 88 Misc. 119, 40 So. and taking all reasonable precautions 813; Peck v. Oregon Short Line R. for his safety.'' Cleveland &c. R. Co. Co., 25 Utah 21, 69 Pac. 153; Gulf v. Lynn (Ind.), 95 N. E. 577. &c. R. Co. V. Melville (Tex. Civ. "Chesapeake &c. R. Co. v. War- App.), 87 S. W. 863. nock, ISO Ky. 74, ISO S. W. 29. 88/ RAILROADS. § 797 own safety, to observe and heed such warnings, if any were given him, of the approach of said engine, and if you beheve from the evidence that reasonably sufficient warnings were given of the approach of the engine to G. street, and the plaintiff heard, or by the exercise of ordinary care could have heard, such warnings and failed to observe or heed them, his failure so to do was neg- ligence on his part, or, if you shall believe from the evidence that the gates were down and he went under them, as he ap- proached the track, this was negligence, and if such negligence on his part, if any there was, so contributed to bring about his injury that but for such negligence he would not have been in- jured, the law of the case is for the defendant, and you should so find, although you may believe from the evidence that the defendant railway company's employes were negligent, as sub- mitted to you in the first instruction; provided, however, if you shall further believe from the evidence that the plaintiff went upon the track upon which the engine was backing, or so near the said track as to be in peril from the approach of the engine, and his presence at such place and his peril were seen, or by the exer- cise of ordinary care could have been seen, by the engineer or brakeman on the engine in time for them, by the exercise of ordi- nary care on their part, to have avoided colliding with him and injuring him, and they negligently failed so to do, the law is for the plaintiff, and you should so find.^^ (6) The court instructs the jury that plaintiff had not the right to rely alone upon the servants of the defendant protecting him from danger, while approaching said crossing, but he was re- quired to exercise ordinary care for his own protection ; that is, such care and caution as a reasonably prudent person of the age, capacity, and experience of plaintiff would reasonably be expected to exercise under like and similar circumstances. ^° (7) The court instructs the jury that if they should find that the intestate, although killed by the moving train of the defend- ant, saw the approaching train, and was conscious of the danger, and had the time and ability to remove himself from the position "* Bauer v. Illinois Cent. R. Co., 156 "^ McNamara v. Chicago &c. R. Co., Ky. 183, 160 S. W. 933. 126 Mo. App. 152, 103 S. W. 1093. § 797 INSTRUCTIONS FORMS. 888 of peril, and failed to do so, then the plaintiff would not be en- titled to recover, and the jury would answer the first issue "No", and they need not consider the other issues.^" (8) The court instructs the jury that if M.'s death was due to the concurrent negligence of himself and the defendant's serv- ants in charge of the train, that is, to the negligence of both par- ties, M. and the company, operating and in effect at the same time, they must find for the defendant.®'- (9) The court instructs the jury that if they believe from the evidence that the plaintiff, before reaching F. street, and the line of defendant's railroad track, took such precautions with respect to danger of collision with trains approaching from the north on said track, as a man of ordinary prudence and care would have done, under the circumstances, to avoid injury, then the jury may find that the plaintiff was not guilty of contributory negli- gence.^^ (10) The court instructs the jury that M., the plaintiff's tes- tator, in going upon the tracks in front of the approaching train, was guilty of negligence, and in the absence of evidence that he could not have gotten off the tracks sooner, his negligence con- tinued as long as he remained on the track, and until the train collided with him. Therefore, notwithstanding the engineer, also, may have been guilty of negligence in not seeing M., or in not sounding the whistle, or in not endeavoring to stop or reduce the speed of the train, the jury must nevertheless find for the defendant.'* (11) The court instructs the jury that the duty of M. to look out for his own safety was as great as the duty of the defendant to look out for him, and the court instructs the jury that the neg- ligence of the defendant, if it was negligent, did not excuse M. from the reciprocal duties he owed to care for his own safety, and that no negligence of the defendant would entitle the plain- " Griffin V. Seaboard Air Line R. '^Washington Southern R. Co. v. Co., 138 N. Car. SS, SO S. E. S16. See Lacey. 94 Va. 460, 26 S. E. 834. also Colorado Midland R. Co. v. Rob- " Morton v. Southern R. Co., 112 bins, 30 Colo. 449, 71 Pac. 371. Va. 398, 71 S. E. 561. =' Morton v. Southern R. Co., 112 Va. 398, 71 S. E. 561.. 889 RAILROADS. § 80O tiff to recover, unless it was the sole, proximate cause of the death of M.*** § 798, Contributory negligence of parents. — The court in- structs the jury that even though they should find that A. B. C. S. was negligent in attempting to cross or walk upon de- fendant's railroad track, and that the plaintiffs were also guilty of negligence in the custody and care of their said son, and even though you believe from the evidence that the negligence of either the plaintiffs or their said son, A. B. C. S., directly con- tributed to cause the injuries complained of, still if you further believe from the evidence that A. B. C. S. had placed himself in a dangerous position by going on defendant's railroad track, and thereafter such dangerous position became known, or in the exercise of ordinary care and diligence could have become known, to defendant's servants in charge of said train in ques- tion, in time to have stopped said train by the exercise of or- dinary care, and avoided the injury complained of, and failed to do so, then your verdict should be for the plaintiffs.^' § 799. Doctrine of last clear chance. — The court instructs the jury that this doctrine of the last clear chance may be stated as follows : The general rule that where one, who through his own fault puts himself in a place of danger on a railroad track, is precluded from recovering damages for his resultant injury or death, is subject to the qualification that where the engineer has, or by the exercise of ordinary care should have, discovered the peril of the deceased or his position, and it is apparent that he can not escape, or he, for any reason, does not make an effort to do so, it becomes the duty of the engineer to use all means in his power to avoid injuring the person.^' §800. Doctrine of discovered peril. — (1) The court in- structs the jury that notwithstanding the fact that the plaintiff has been guilty of some negligence in exposing his person to ''Morton v. Southern R. Co., 112 '"Neary v. Northern Pac. R. Co., Va. 398, 71 S. E. 561. 41 Mont. 480, 110 Pac. 226, '"Schmitt V. Missouri Pac. R. Co., 160 Mo. 43, 60 S. W. 1043. § 800 INSTRUCTIONS FORMS. 89O an injury at the hand of the defendant, yet if the defendant discovered the exposed situation of the plaintiff in time, by the exercise of ordinary or reasonable care after so discovering it, to have avoided injuring him, and nevertheless failed to do so, the contributory negligence of the plaintiff does not bar a recov- ery of damages from the defendant. Where a person negligently walks upon a railroad track, if the engineer, after noticing his exposed situation, fails to give the proper signals, or otherwise acts wilfully and recklessly, in consequence of which the person is killed or injured, the company shall be liable in damages.^^ (2) The court instructs the jury that if you believe from the evidence in this case that, after the engineer in charge of de- fendant's engine became aware of the fact that decedent was on or so near the track on which said train was running as to render his position dangerous or perilous, he failed to use or- dinary care to apprise decedent of the approach of the train and to avoid striking him, and that as a result thereof he was struck and killed, you should find for the plaintiff. On the other hand, unless you do believe from the evidence that the said en- gineer, after becoming aware of decedent's presence on or so near said track as to render his position dangerous or perilous, did fail to use ordinary care to apprise him of the approach of the train and to avoid striking him, you should find for the de- fendant; and, in determining the question as to whether said engineer did or did not use ordinary care, you should con- sider the time in which he had to act, and all the circumstances of the situation.^* (3) The court instructs the jury that decedent, at the time he was struck, was a trespasser on the defendant's right of way and those in charge of the train owed him no duty until his peril was actually discovered by them, and if you believe that, after his peril was actually discovered, the defendant's employes used all reasonable means at their command to avoid injuring °' Denbeigh v. Oregon-Washington '' Johnson v. Louisville &c. R. Co. R. &c. Co., 23 Idaho 663, 132 Pac. (Ky.), 118 S. W. 383. 112. 891 RAILROADS. § 80O him, considering the time at their disposal, you should find for the defendant.^' (4) The court instructs the jury that unless they believe from the evidence that the defendant's engineer saw the plain- tiff in time to avoid injury to him by using ordinary care, and that the said engineer failed to use such care to prevent injury to the plaintiff, the jury will find for the defendant/" (5) The court instructs the jury that the defendant is liable in this case only if its servants failed to exercise ordinary care to prevent the injury after they became aware of the danger to which deceased was exposed; or, after they might have be- come aware thereof by the exercise of ordinary care; and by ordinary care is meant such care as would be ordinarily used by prudent persons performing a like service under similar cir- cumstances.*^ (6) The court instructs the jury that as a general rule con- tributory negligence on the part of the deceased is fatal to a right of recovery in actions such as this. But it is not an in- variable rule that, where one through his own negligence puts himself into a place of danger, a right of recovery is denied to him or to his heirs or representatives in case of his death be- cause of injuries inflicted by another. The general rule that one's own negligence in such case precludes a recovery is sub- ject to the qualification that where the defendant has discovered or should have discovered the peril of the position of the one killed, and it is apparent that he can not escape therefrom or for any reason does not make an effort to do so, the duty be- comes imperative for the defendant to use all reasonable care to avoid the injury; and if this is not done, he becomes liable, notwithstanding the negligence of the injured party or deceased. And this is true not only as to trespassers upon a railway track in the way of passing trains, but also as to employes who may become so absorbed in their duties that they do not observe the "Johnson v. Louisville &c. R. Co. "Rine v. Chicago &c. R. Co., 88 (Ky.), 118 S. W. 383. Mo. 392. " Louisville &c. R. Co, v. Allen, 153 Ky. 252, 154 S. W. 1095. § 800 INSTRUCTIONS FORMS. 892 signals. In no case may the railroad company, after the peril becomes apparent to those in charge of a train, and especially so after it is obvious that the danger is not appreciated by the person in the perilous situation, omit any reasonable effort to stop the train and prevent injury.^^ (7) The court instructs the jury that assuming, for the pur- pose of inquiry, that this girl vi^as guilty of contributory negli- gence in going on the track in the first instance, assuming that, yet if she became in a position of peril and danger, and the railroad company saw it in time to have avoided injuring her, and didn't use due care after it discovered her position of peril, and that v\^as the sole cause of her injury, then the plaintiff's prior negligence, if she w^as guilty of negligence, would not defeat a recovery, because under the circumstances tjiat negli- gence would not be a proximate cause of her injury. Ordinarily the proximate cause is a question of fact for the jury, but under the facts as I stated to you, I charge you that, if notwithstanding her negligence, the railroad company could have avoided the injury to her by the exercise of due care, after they discovered her peril, if she were in peril, and did not exercise that due care after they discovered that she negligently put herself in that position, if she did so she would nevertheless be entitled to recover at your hands.*^ (8) The court instructs the jury that, if you see a person in a line of danger, whether that person be a licensee, or whether that person be a trespasser, from the moment you discover that they are in a position of peril, then the law says you are to use due care, not to injure them, the moment it is discovered that they are in a position of peril.** (9) The court instructs the jury that if the deceased was negligent, yet if the defendant railway company, its agents, or servants, after such negligence of the deceased, by the exer- cise of ordinary care, could have discovered and avoided inflict- "Neary v. Northern Pac. R. Co., "Dimery v. Bennettsville &c. R. 41 Mont. 480, 110 Pac. 226. Co. (S. Car.), 78 S. E. 877. *'Dimery v. Bennettsville &c. R. Co. (S. Car.), 78 S. E. 877. 893 RAILROADS. § 8oO ing the injury upon the deceased, and such negligence on the part of the defendant railway company, its agents or servants was the proximate cause of the injury to the deceased, or if, after the discovery of the danger of deceased, the defendant railway company, its agents, or servants could have avoided inflicting the injury upon the deceased by the exercise of or- dinary care, if the failure to exercise such ordinary care on the part of the defendant railway company, its agents, and servants was the proximate cause of the injury to deceased, and the negli- gence of the deceased, was not a proximate cause of the injury, then the plaintiff would be entitled to recover notwithstanding the negligence of the deceased/^ (lo) The court instructs the jury that as to whether the en- gineer discovered the peril of M. M., and, when he discovered his peril, as to whether he used all the means at his command consistent with the safety of the train to avoid injury after he discovered his peril, if he did, may be shown by circumstances, and same must be determined by the circumstances at the time.** (ii) The court instructs the jury that if the defendant, by its servants in charge of the engine, knew of C. B.'s peril in time to have avoided the same, such knowledge imposed upon it the duty of using every means then within its power, consistent with the safety of the engine and cars and the persons thereon, to avoid running him down or striking him, and failure to use such means would render the defendant liable, notwithstanding plaintiff may have been wrongfully on defendant's track. There- fore, if you believe from a preponderance of the evidence that after C. B. was discovered on the track in front of the approach- ing engine, defendant's servants in charge of the train negli- gently failed to use such care, attention, and skill and effort to stop or check up the train and avoid the collision with plain- tiff as they reasonably should and could have done after it rea- sonably became apparent to them that plaintiff would not get off the track, and if plaintiff received some or all of the injuries " Harbert v. Atlanta &c. R. Co., 78 ^ International &c. R. Co. v. Munn, S. Car. 537, 59 S. E. 644. 46 Tex. Civ. App. 276, 102 S. W. 442. § 8oi INSTRUCTIONS FORMS. 894 complained of in his petition through such fault of defendant's said servants, then you will find for the plaintiff." (12) The court instructs the jury that if they believe from the evidence that the engineer was guilty of negligence in failing to see M., or warn him of the approach of the train, or in fail- ing to endeavor to stop or reduce the speed of the train after the engineer could by the exercise of due care have seen M.'s danger, and if they further believe from the evidence that M. by the exercise of due care on his part would or should have dis- covered the negligent omission of the engineer in time to have saved himself, the jury must find for the defendant.*' (13) The court instructs the jury that if they believe from the evidence that the decedent, C. S. M., could have stepped from the track and avoided collision with the train after the train had reached a point at which no effort on the part of the en- gineer could have prevented the collision, then the jury must find for the defendant, even though they believe from the evi- dence that the engineer might, by the previous exercise of due care, have discovered, in time to have prevented the collision, the said M.'s intention to cross the track in front of the train.*' § 801. Erroneous action of injured person placed in sud- den peril. — The court instructs the jury that if they believe from all the evidence that the deceased, P. M., was, on the date of the accident, placed suddenly and unexpectedly in a danger- ous position, or what to him reasonably appeared to be a dan- gerous position, if he was so placed, and was so placed by the failure of the defendants, their agents and servants, to give rea- sonable warning of the approach of the train, or by their run- ning said train substantially at a rate of speed greater than ordinary care for the safety of others would allow, then he was not guilty of contributory negligence, if he did not adopt the best means of escape, but made an error of judgment as to the best course to pursue; all that was required of him, under the "Nacogdoches &c. R. Co. v. Beene, "Morton v. Southern R. Co., 112 47 Tex. Civ. App. S8S, 106 S. W. 456. Va. 398, 71 S. E. 561. "Morton v. Southern R. Co., 112 Va. 398, 71 S. E. 561. 895 RAILROADS. § 802 circumstances, if it was under such circumstances he acted, being to act as a person of ordinary judgment and prudence would have done, if placed in the same situation.^" §802. Duty to stop, look, and listen. — (1) The court in- structs the jury that by the requirement of looking up and down the track for all approaching trains, it is intended that the trav- eler, as far as an ordinarily prudent and careful man can do, shall have constantly under his eye the whole track, as far as his powers of vision, will permit, in order that he may avoid going upon the track at a time when there is danger of his being injured ; and the law required the plaintiff in this case to do that, as well as to constantly listen for trains, and, if the plaintiff from the proof did not do so, then he can not recover; other- wise, he can.°^ (2) The court instructs the jury that it is the duty of any one before crossing, or attempting to cross, a railway track to exercise due care, which is ordinarily the duty to stop and look and listen for any approaching train, and the same duty rests upon any one in crossing a railroad track where a car or engine is being properly switched back and forth upon said track at a crossing, and if the jury believe from a preponder- ance of the evidence that the plaintiff saw the car or engine of defendant being switched back and forth upon its track at a crossing, and negligently attempted to cross said track or tracks of defendant company upon which said car or engine was being switched back and forth, then such attempt to cross said track or tracks was contributory negligence on the part of the plain- tiff, and at his own peril and your verdict must be for the de- fendant. ='' (3) The court instructs the jury that persons who desire to cross a railroad track at a point where a highway crosses the ™Maysville &c. R. Co. v. McCabe Co. v. Melville (Tex. Civ. App.), S7 (Ky.), 100 S. W. 219. S. W. 863; Illinois Central R. Co. v. " St. Louis &c. R. Co. V. Dillard, 78 Bethea, 88 Miss. 119, 40 So. 813. Ark. S20, 94 S. W. 617. See also, ""Louisiana &c. R. Co. v. Ratcliffe, Peck V. Oregon Short Line R. Co., 25 88 Ark. 524, 115 S. W. 396. Utah 21, 69 Pac. 153; Gulf &c. R. § 802 INSTRUCTIONS FORMS. 896 same have a right to do so, and are only required to exercise ordinary care in doing so. To constitute such care, one ap- proaching a railroad crossing must use his senses of sight and hearing, and to take all reasonable precautions to avoid injury by passing locomotives, engines, and trains. The kind and de- gree of care to be taken must depend upon the circumstances of each case. The traveler is required to act as a person ex- ercising ordinary care and prudence would act under the cir- cumstances surrounding him.^^ (4) The court instructs the jury that it was the duty of the plaintiff to take reasonable precautions to ascertain if a train was coming which might endanger him at the crossing, and to make reasonable use of his senses by listening for signals or the noise of the train when within a reasonable distance from the crossing, and when he arrived at a point from which a train could be seen, by looking in the direction from which a train might come ; and, if the train in question was at the time in plain sight or hearing from the point where it was the plaintiff's duty to so look or to so listen for trains, and so circumstanced as to suggest reasonable probability of danger, an attempt to cross the track would be negligence which would defeat his recovery of damages for injury thus received.^* (5) The court instructs the jury that if you believe from the evidence that plaintiff in the exercise of ordinary care for his own safety ought to have kept a lookout for the approach of said car or cars, and that he failed to keep such a lookout that a person of ordinary care would have done, and thereby helped to cause his own injury, you will find for the defendant, even though you may believe from the evidence that the de- fendant, its agents or employes, failed to exercise ordinary care in any or all of the respects mentioned in paragraph : of this charge. In this connection, however, you are instructed that, if you believe from the evidence that, just before said locomotive and car or cars reached said crossing, the same were together, or reasonably appeared to be together to plaintiff, and that ^ Cleveland &c. R. Co. v. Lynn, 177 " Case v. Chicago Great Western Ind. 311, 95 N. E. 577. R. Co., 147 Iowa 747, 126 N. W. 1037. 897 RAILROADS. § 802 plaintiff observed this, and that he had his attention directed to and was watching the locomotive as the same was crossing over said crossing not knowing that said car or cars had been uncoupled therefrom and were moving on another track, and that for this reason he failed to look back to see Avhether any car or cars was or were moving on the track that he was on, and if you believe further from the evidence that under such circumstances the plaintiff exercised ordinary care for his own safety, that he would not be guilty of any contributory negli- gence that would prevent his recovering damages, if you believe from the evidence that the defendant, its agents or employes, was or were guilty of negligence, in any one or more of the respects set forth in clause No. of this charge."® (6) The court instructs the jury that it was the duty of plaintiff, while approaching said railroad track and before driv- ing upon the same, to use his eyes and ears, to look and listen for an approaching train; and if the jury believe from the evi- dence that the plaintiff, if he had so looked and listened, could have thereby seen or heard the train in time to avoid collision with it and the injuries complained of, then your verdict must be for the defendant, notwithstanding the jury may further be- lieve from the evidence that defendant's servants failed to give signals by bell or whistle of the train's approach."® (7) The court instructs the jury that if you find and believe from the evidence in this case that the plaintiff and the person driving the vehicle in which plaintiff was riding had knowledge of the fact that a train of cars was, at the time, in the switch- yards at , , and with such knowledge approached the railroad crossing at street, in said city of , then it became the duty of plaintiff, before undertaking to cross the railroad tracks at said street crossing, either by her sense of hearing or by her sense of sight to determine whether or not any train of cars was about to cross said street at said cross- ing before undertaking to cross the same, and, if necessary, to stop at such distance before reaching said crossing as would "Texas &c. R. Co. v. Barnwell "Kenney v. Hannibal &c. R. Co., (Tex. Civ. App.), 133 S. W. 527. lOS Mo. 270, IS S. W. 983. 57 — Branson's Inst. § 802 INSTRUCTIONS FORMS. 898 enable her to determine this fact; and if you find and beUeve from the evidence that she failed to do so, then your finding must be for the defendant." (8) The court instructs the jury that, while it may have been the duty of defendant's servants or agents to make all rea- sonable efforts to stop the train and avoid a collision,- yet a duty also devolved upon the deceased, and if after he saw the train coming, or might if looking or listening have seen or heard it coming, he could have gotten out of its way, or kept out of its way, but did not, then the plaintiffs can not recover, unless you should further fiind from the evidence that after the deceased was in a position of peril the defendant's servants in charge of said train either saw him, or by the exercise of or- dinary care might have seen him, in time to have stopped the train, by the exercise of ordinary care, before it struck him. Although the jury may believe from the evidence that defend- ant's employes were guilty of negligence in failing to discover the presence of plaintiffs' son, A. B. C. S., on the track, yet if they also believe from the evidence that said A. B. C. S. was negligent in failing to discover the approach of defendant's train in time to have kept out of its way, or to have gotten out of its way if in it, then your verdict will be for the defendant, unless you should further find from the evidence that after the deceased was in a position of peril the defendant's servants in charge of said train either saw him, or by the exercise of or- dinary care might have seen him, in time to have stopped the train, by the exercise of ordinary care, before it struck him. The court instructs the jury that if they believe from the evi- dence that the death of plaintiffs' son, A. B. C. S., was the result of mere accident or casualty, and not of negligence on the part of the defendant, your verdict will be for the defend- ant. =» (9) The court instructs' the jury that the track of a railway company is of itself a proclamation of danger to a traveler, and that he must not only use his eyes and ears, looking and listen- " Montgomery v. Missouri Pac. R. ^' Schmitt v. Missouri Pac. R. Co., Co., 181 Mo. 477, 19 S. W. 930. 160 Mo. 43, 60 S. W. 1043. 899 RAILROADS. § 803 ing in both directions, but he must, when about to cross a track, look and Hsten, so as to make these acts reasonably effective. If such looking and listening does or would warn him of the near approach of a train, then it is his duty to keep off the track until the train has passed, and to go on the track under such circumstances is negligence and he can not recover.^' § 803. Duty to stop, look and listen — At what point duty to be performed. — (1) The court instructs the jury that it is not sufficient for him to look once or even several times ; but he must continue to look and listen until the danger is passed. In this case it was not sufficient for deceased to look and listen as he approached the freight engine ; but it was his duty to look and listen after he passed the freight engine; and if you be- lieve from the evidence that, if he had looked immediately after he passed the freight engine, he could have seen the approach- ing passenger train in time to have avoided injury, the plain- tiff can not recover in this case.*" (2) The court instructs the jury that it can not be said as a matter of law that plaintiff while approaching and attempting to cross defendant's tracks at T. avenue, should have looked and listened for approaching locomotive engines and trains at any particular point, or at any particular time, or that he should have looked in one direction at a particular time, and in another direction at another particular time. These are questions for you to determine. The law simply says that he should have looked and listened at such time, at such places, and in such directions as a person exercising ordinary prudence would have done under the circumstances surrounding the plaintiff at the time, as shown by all the evidence in this case.°^ (3) The court instructs the jury that the admitted facts in this case disclose that from the north rail of the main track to the north rail of the L. & S. track the distance was feet inches. If, therefore, the jury believe from the evidence ™ Morton v. Southern R. Co., 112 "Cleveland &c. R. Co. v. Lynn, 177 Va, 398, 71 S. E. 561. Ind. 311, 95 N. E. 577. °° St. Louis &c. R. Co. V. Chamber- lain (Ark), 150 S. W. 157. § 804 INSTRUCTIONS FORMS. 9OO that without any lights a person in the exercise of ordinary care could have seen a moving box car at the rear of defend- ant's train, at such a distance therefrom as to be able to stop and avoid a collision, then it was the duty of plaintiff, before passing over defendant's main track, to stop at a reasonable distance therefrom for the purpose of learning of the approach of said train, and preventing a collision. If she failed to do so,, and by reason thereof caused or contributed to the injuries com- plained of, she is not entitled to recover in this action.^^ § 804. Duty to stop, look and listen — View of crossing ob- structed. — (1) The court instructs the jury that, while the fact that there was a freight train standing on the side track, the engine of which partially obstructed the crossing and was making a loud noise, if such were the facts, would impose upon deceased a greater degree of care for his own safety in op- proaching said crossing, still, if these conditions existed and the defendant was responsible for them, this would impose upon the defendant company a corresponding greater degree of care in so operating its trains that, if deceased was rightfully using the crossing and in the exercise of ordinary care for his own safety, he might not be injured in so doing."' (2) The court instructs the jury that if you find from the evidence that J. A. P. and the deceased looked and listened be- fore driving upon the track, and that the view was so obstructed that they could not see the moving train, or become aware of its approach, that caused the injury, in time to avoid it, and that they took all the precautions of reasonably prudent per- sons for their own protection to avoid the dangers, if any, of the crossing, then you may find for the plaintiff as to the issue of contributory negligence."* " Montgomery v. Missouri Pac. R. &c. R. Co. v. Dillard, 78 Ark. S20, 94 Co., 181 Mo. 477, 79 S. W. 930. See S. W. 617; Peck v. Oregon Short also Colorado Midland R. Co. v. Rob- Line R. Co., 25 Utah 21, 69 Pac. 1S3. bins, 30 Colo. 449, 71 Pac. 371 ; Grif- " St. Louis &c. R. Co. v. Chamber- fin V. Seaboard Air Line R. Co., 138 lain (Ark.), ISO S. W. 157. N. Car. 55, 50 S. E. 516. Duty to ""St. Louis &c. R. Co. v. Prince, stop, look and listen, see St. Louis 101 Ark. 315, 142 S. W. 499. 901 RAILROADS. § 804 (3) The court instructs the jury that: (i) It was the duty of appellee, at all available points, before entering upon the crossing, to look and listen for approaching trains. (2) If, on account of obstructions and appellant's failure to give warn- ing signals, and the high and rapid rate of speed of said train, he was not able, by the exercise of due care to see or hear the train until he was upon the track, and too late to escape his perilous position, then he was not guilty of contributory negli- gence.°° (4) The court instructs the jury that as the plaintiff drove along said avenue, approaching said crossing, it was his duty to realize and have in mind that he was approaching a place of danger, to be on the alert and use his sense of sight, looking both ways, and use his sense of hearing, and, if necessary, to stop, look both ways, and listen to ascertain for himself whether or not a train was approaching, and whether or not he could safely cross the tracks. If his view was obstructed so that he could not see to the east, then it was his duty to all the more carefully use his sense of hearing to look out and listen for any and all warnings that would notify him of the approaching train, and for the purpose of determining whether he could cross the tracks. The law says it was his duty to use care and caution in proportion to the known danger. The law required him to use that degree of care and caution that a person similar to him, of ordinary prudence, would be presumed to use under similar circumstances. If he failed to do this, and that failure contributed in the slightest degree to the injury complained of, then he can not recover in this action, no matter how careless or negligent the defendant may have been.** (5) The court instructs the jury that if obstructions to plain- tiff's view when approaching the track, or if interference with his hearing while his team was in motion, or other circum- stances, indicated that it was essential for him to stop his team and wagon in order to overcome the noises within his control, and to the better see and hear whether it was safe for him to "' Lake Erie &c. R. Co. v. Moore °» Oeveland &c. R. Co. v. Wuest, 41 (Ind. App.), 97 N. E. 203. Ind. App. 210, 83 N. E. 620. § 804 INSTRUCTIONS FORMS. 9O2 cross, it was his duty to stop, and if the neglect on his part to perform any of such duties to stop, look, or listen, as so re- quired of him, contributed to cause the accident, it would pre- clude any recovery by the plaintiff even if you should find that the defendant was also negligent, or failed to give signals, maintain a flagman, or was running at an excessive or unlawful speed."^ (6) The court instructs the jury that, where the view of the plaintiff on the highway approaching the crossing of the railroad of the defendant is obstructed so that he can not see an approach- ing train until within about fifteen feet of the track, greater care should be exercised by the plaintiff than if no such obstruc- tion existed; and in case you find that the view was so obstructed that he could not have seen an approaching train within about fifteen feet of the track, then it would be incumbent upon the plaintiff to use greater care than though there were no obstruction, and he should make a vigilant use of his senses to determine whether there is a present danger in crossing. The question as to whether he should have stopped and assured him- self that there'was no danger is one for you to decide. If you find that he should have stopped and made sure there was no danger in crossing and that he did not take this precaution, then you are instructed that the plaintiff can not recover, and that it is your duty to return a verdict in favor of the defendant."* (7) The court instructs the jury that if you find and believe from the evidence that the night was so dark that a moving box car or cars could not have been seen except a person was within a short distance thereof, then it was the duty of the plaintiff to exercise in a greater degree her sense of hearing to determine the fact as to whether or not there was any danger at said cross- ing from trains or moving cars; and if you find and beheve from the evidence that by the exercise of her sense of hearing in a manner that an ordinarily careful and prudent person could have done under the same circumstances, in view of the fact that she could not see, that she could have heard and "" Case V. Chicago Great Western " St. Louis &c. R. Co. v. Brock, 64 R. Co., 147 Iowa 747, 126 N. W. 1037. Kans. 90, 67 Pac. S38. ^03 RAILROADS. § 805 thereby known of the approach of a moving car or cars in time to have avoided a collision, then and in that instance the plaintiff would be guilty of such contributory negligence as would pre- clude her from recovering in this case, and your verdict should be for the defendant."'' (8) The court instructs the jury that, even though they may believe from the evidence that a view of the track on which the defendant's engine was approaching the crossing was par- tially obstructed by cars left standing on the side tracks, yet that fact did not lessen the caution required of the plaintiff in attempting to cross, but, on the contrary, imposed on him a higher degree of caution.'" § 805. Reliance on signals of flagmen and crossing watch- men. — (1) The court instructs the jury, as a matter of law, that under the evidence in this case the plaintiff is not entitled to recover, even if the jury believe, from the evidence, that the flagman signaled him to come across the track, and if the jury also believe, from the evidence, that no bell was rung or whistle sounded, provided the jury believe, from the evidence, that the plaintiff did not exercise ordinary and reasonable care, under all the circumstances, as shown by the evidence, to dis- cover the approach of the train and prevent being injured.'^ (2) The court instructs the jury that if you believe, from the evidence, that the flagman on the crossing did not flag the plain- ^ Montgomery v. Missouri Pac. R. idence, that the flagman signaled him Co., 181 Mo. 477, 79 S. W. 930. to come across the track, and if the '"Atlantic &c. R. Co. v. Rieger, 95 jury also believe, from the evidence, Va. 418, 28 S. E. 590. See also Bene- that no bell was rung or whistle diet V. Port Huron, 124 Mich. 600, 83 sounded, provided the jury believe, N. W. 614; Reed v. Spokane, 21 from the evidence, that the plaintiff Wash. 218, 57 Pac. 803; Norfolk &c. could, by looking and listening, have R. Co. V. Spencer, 104 Va. 657, 52 S. discovered the approach of the train E. 310. in season to avoid the accident com- "The instruction, as requested in plained of." The latter clause of the this case, was: "The jury are in- instruction was modified as shown in structed, as a matter of law, that un- the above form. The modification der the evidence in this case the was approved by the higher court, plaintiff is not entitled to recover, Chicago &c. R. Co. v. Clough, 134 111. even if the jury believe, from the ev 586, 25 N. E. 664. § 805 INSTRUCTIONS FORMS. 904 tiff to cross the tracks at all, and if the jury further believe, from the evidence, that he signaled the plaintiff not to cross, in time for the plaintiff, by the exercise of reasonable care, to have avoided the injury, then the jury are instructed, as a mat- ter of law, that the plaintiff is not entitled to recover in this case, even if the jury should also find, from the evidence, that the gates were not lowered on the crossing, that no bell was rung or whistle sounded, and that the train was moving at a rate of speed in excess of that prescribed by the ordinances of the town of .'' (3) The court instructs the jury that if you find from the evidence that the defendant had placed a watchman at the cross- ing where plaintiff was injured, then the watchman so placed at the crossing by the defendant should be physically capable of reasonably discharging the duties of such watchman; and if you find from the evidence that the watchman placed at said crossing by defendant on the day plaintiff vs^as injured, by rea- son of his age, or physical debility, if you find from the evi- dence this to be the fact, was incapacitated to reasonably dis- charge the duties of such watchman, if he had been physically able to perform the duties of watchman, and would have warned the boy in time to have prevented the collision by the exercise of ordinary care on his part, and that by reason of such physical incapacity a collision occurred between the engine of the de- fendant and the vehicle in which plaintiff was riding, and the plaintiff's injury was the result thereof, then your verdict will be for the plaintiff, provided you find from the evidence plain- tiff was exercising reasonable care and caution to protect him- self from injury.'^ (4) The court instructs the jury that if you believe from the evidence that defendant's switchman B. was standing near the switch target of the L. & S. track, immediately west of street sidewalk, with his lighted lantern in his hand, and that there was at the time no obstacle between him and plaintiff, and that he signaled to plaintiff with his lantern, or to the train " Chicago &c. R. Co. v. Clough, 134 " McNamara v. Chicago &c. R. Co., III. 586, 2S N. E. 664. 126 Mo. App. 152, 103 S. W. 1093. 905 RAILROADS. § 806 crew in the east to stop, so that said signal could, by the ex- ercise of ordinary care on her part, have been seen by plain- tiff before sustaining the injury complained of, in time to have avoided said injury, then she is not entitled to recover in this action/* (5) The court instructs the jury that if you believe from the evidence that W. L., with a lighted lantern in his hand, was standing in street, within or feet of defendant's main track when plaintiff passed over the latter, and said watchman either signaled to plaintiff or to the train crew with his lantern, then the plaintiff is not entitled to recover, and your verdict must be for the defendant, provided you further find that plaintiff saw such signal, or by the exercise of ordinary care and prudence could have seen such signal, in time to have stopped the horse and buggy in time to have avoided the acci- dent or collision.^® (6) The court instructs the jury that if you find from the evidence that defendant's flagman at B. crossing failed to notify plaintiff of. the approach of the engine on defendant's road in time for plaintiff to have prevented the collision between his horse and said engine, that such failure was negligence and was a proximate cause of the collision, and that plaintiff was not guilty of negligence directly contributing to the said col- lision, you will find for plaintiff.'^ § 806. Reliance on safety gates. — ( 1 ) The court instructs the jury that every person is bound to know that a railroad cross- ing is a dangerous place and he is guilty of negligence unless he approaches it as if it were dangerous. And if the jury be- lieve, from the evidence, that the safety gates at the crossing in question were down and the deceased went upon the tracks underneath the gates, and in so doing failed to exercise due care for his personal safety, and in consequence thereof was struck by an engine and killed, then his administratrix can not recover " Montgomery v. Missouri Pac. R. '° Buchanan v. Missouri &c. R. Co., Co., 181 Mo. 477, 79 S. W. 930. 48 Tex. Civ. App. 299, 107 S. W. 552. "Montgomery v. Missouri Pac. R. Co., 181 Mo. 477, 79 S. W. 930. § 8oy INSTRUCTIONS FORMS. 906 in this action and your verdict should find the defendant not guilty." (2) The court instructs the jury that it is the duty of a per- son Standing within the gates at a railroad crossing and in a place of safety and knowing that a train may be approaching from either direction at any moment, and he sees the gates go down, not to proceed across until the gates are raised, and if he does so he is guilty of contributory negligence as a matter of law.^^ (3) The court instructs the jury that H. had no right to assume that the gates were lowered for the passage of the freight train only, but that they are a signal for all trains that are about to pass or are passing.'' § 807. Crossing between cars in motion. — The court in- structs the jury that if they believe from the evidence that E. P. lost his life by reason of crossing over or between the cars while the train was in motion, then the jury will find for the defend- ant.'" § 808. Injuries in jumping on moving cars. — The court instructs the jury that if they believe from the evidence that plaintiff's son, W., got ofif the defendant's train near W., at the request or direction of a brakeman connected therewith, in safety, and that he thereafter attempted to get upon or aboard said train, and was injured while so doing, plaintiff is not en- titled to recover in this action, and your verdict will be for the defendant." § 809. Presumption that person killed on track exercised due care. — (1) The court instructs the jury that in the ab- sence of evidence to the contrary, the law presumes that a per- son in a place of danger exercised all reasonable care and caution "Carlin v. Grand Trunk Western '"Hatch v. Lake Shore &c. R. Co., R. Co., 243 111. 64, 90 N. E. 201, 134 145 N. Y. S. 781. Am. St. 354. '"Louisville &c. R. Co. v. Price, 25 ™ Hatch V. Lake Shore &c. R. Co., Ky. L. 1033, 76 S. W. 836. 145 N. Y. S. 781. " Farber v. Missouri Pac. R. Co., 139 Mo. 272, 40 S. W. 932. 907 RAILROADS. § 809 to avoid that danger, and that a person going on a railroad track, where there is no evidence to the contrary, is pre- sumed to have stopped, looked, and listened, unless the circum- stances raise a presumption to the contrary. This presumption continues after the person is once upon the track and that the (decedent), in the absence of evidence to the contrary, will be presumed to have continued to have looked and listened and exercised ordinary care to prevent injury to himself after he first entered on the track, in the absence of evidence to the contrary.*^ (2) The court instructs the jury that where a human being is killed by an accident, and there is no eyewitness to the same, the law indulges the inference that the instinct of self-preserva- tion, of the love of life, was such as to prompt him to exercise ordinary care for his safety. This inference is not conclusive, but is a matter to be considered by the jury in connection with all the evidence in the case. It is not only indulged in where there is direct credible testimony as to the party's conduct at and prior to the time of the accident, but is only to be con- sidered in connection with the other circumstances shown in evidence with reference to those matters which are not accounted for by credible direct testimony.'* (3) The court instructs the jury that the fact, if it be a fact, that any eyewitness testifies to any fact or state of facts, and such testimony is not contradicted by the testimony of other witnesses, does not require you to find that such testimony of such witness is true. In determining whether or not a fact or state of facts existed as testified by such witness, you have a right to take into consideration the means and opportunity of such witness to know the fact or state of facts as testified to by him, the reasonableness or unreasonableness of his testimony, its consistency with itself, and other well-proved facts and cir- cumstances as disclosed by the evidence, and to apply to such "This instruction states correctly case. Rothe v. Pennsylvania Co., 195 the abstract rule of law and would be Fed. 21. proper in connection with concrete in- " Platter v. Minneapolis &c. R. Co. structions applicable to the particular (Iowa), 143 N. W. 992. § 8lO INSTRUCTIONS FORMS. 908 testimony the test of credibility of witnesses as is herein au- thorized to be appHed by you/* (4) The court instructs the jury that in this case, if you be- heve from the evidence that, owing to the darkness or the distance of the witness or witnesses who have testified upon the subject from the deceased, or for any other reason, they could not observe his acts and conduct or determine whether or not said deceased, G. P., looked or listened for the approaching train, then you will have the right to consider the instinct of self-preser- vation in connection with the other facts and circumstances appearing in evidence in determining whether or not in that respect he exercised ordinary care for his safety when he came within the zone of danger. But if you believe that, while he was approaching said crossing, and during the time the duty devolved upon him to look and listen for approaching trains, he was under the scrutiny of some credible witness who ob- served the acts and conduct of said P. at such time, then you are bound by the testimony given by such witness on such subject, and should not consider the inference that at the time covered by such testimony the said G. P. was prompted in his conduct by the instincts of self-preservation, if such inference is incon- sistent with the acts and conduct shown by such direct testi- mony.^'' § 810. Evidence as to distance in which train may be stopped. — The court instructs the jury that evidence as to the distance in which a train may be stopped under perfect or ideal conditions is not conclusive in this case. The question here is whether or not defendant's engineer, after his mind had become conscious of and he realized and understood H. O.'s danger, negligently or intentionally failed to use the means at his command to avoid the injury. Unless the engineer was guilty of such dereliction in his duty after becoming conscious of H. O.'s peril, your verdict must be for the defendant.*' " Platter v. Minneapolis &c. R. Co. "' Brown v. St. Louis &c. R. Co., (Iowa), 143 N. W. 992. 171 Ala. 310, 55 So. 107. '° Platter v. Minneapolis &c. R. Co. (Iowa), 143 N. W. 992. 909 RAILROADS. § 8l2 §811. Damage recoverable for personal injuries. — The court instructs the jury that if they find for the plaintiff they will assess her damages at such sum as they believe from the evidence will compensate her for the bodily pain and mental anguish, if any, which she has suffered, together with such sum as will compensate her for any permanent injury, if any, which they may believe from the evidence she has sustained by reason of the injury in question, and for the pain and suffering, if any, which they may believe from the evidence she will suffer in the future by reason of said injury; all not to exceed the sum of dollars." §812. Killing animals. — (1) The court instructs the jury that the law makes it the duty of persons running trains in this state upon any railroad to keep a constant lookout for stock upon said railroad; and, if any stock shall be injured by the negligence of such persons to keep such a lookout, the company owning and operating such railroad shall be liable to the owner of such stock so injured for all damages resulting from such neglect, and the burden of proof shall devolve upon the railroad company to establish the fact that this duty has been per- formed.** . (2) The court instructs the jury that it was the duty of de- fendant's engineer to keep a lookout for stock upon its track and to use ordinary care to avoid injury to stock after they had been discovered by him, or after he might have discovered them by the use of ordinary care and diligence.*® (3) The court instructs the jury that if they find from the evidence that the animal was killed by the defendant's train, and the defendant failed to have notice of said killing posted at the nearest station house and nearest depot house to the kill- ing, within one week thereafter, a true and correct description of the animal killed and where killed, they will find for the plain- tiff in double the valye of the animal as may be shown by the evidence.'" " Montgomery v. Missouri Pac. R. " Kansas City Southern R. Co. v. Co., 181 Mo. 477, 79 S. W. 930. Ingram, 80 Ark. 269, 97 S. W. 55. " Fenton v. De Queen &c. R. Co., »° St. Louis &c. R. Co. v. Ewing, 85 102 Ark. 386, 144 S. W. 192. Ark. 53, 107 S. W. 191. 8l2 INSTRUCTIONS FORMS. 9IO (4) The court instructs the jury that if you find from the preponderance of the evidence that the horse was found dead on defendant's right of way, and you beheve from the nature and appearance of the injuries upon said animal, or from his hair, blood, tracks, and other signs on the track, if any is shown, that the animal was struck and killed by a passing train while on defendant's track, then, under the rule fixed by the statute, the presumption would arise that the death of the animal was due to the defendant's negligence, and you should assess the damages at whatever the evidence shows the market value of the animal to be."^ (5) The court instructs the jury that if the horse in ques- tion got onto the defendant's railway track from a highway crossing, at a point where the defendant had a side-track cross- ing the highway, on which it received and discharged freight, and which it had constructed and used for the convenience of the public and in the transaction of its business with them, then the defendant was not required to fence or inclose its track at that point, and the plaintiff could not recover/^ (6) The court instructs the jury that the law is, as you have heard stated here, that when a man proves that he owns live stock, and that it was killed upon the track of a railroad com- pany, the law raises the presumption of negligence as against the railroad company, and says that, nothing further appearing than that, and there is no showing to the contrary, no explana- tion on the part of the railroad company, then the man is en- titled to recovery, but the law goes on and says that where the railroad company comes in and denies that there was any neg- ligence on its part and explains the killing and overcomes the burden of negligence thrown upon it, explains it satisfactorily to the jury that the killing was unavoidable, and was caused through no negligence on their part, then the presumption is removed, and the party can not recover because, as you see, his right to recovery is based upon the negligence of the rail- road company, and if it is shown that there has been no negli- " St. Louis &c. R. Co. V. Ewing, 85 "' Indiana &c. R. Co. v. Sawyer, 109 Ark. S3, 107 S. W. 191. Ind. 342, 10 N. E. lOS. 91 1 RAILROADS. §813 gence on the part of the raih-oad company, he can not recover. The jury is instructed that, notwithstanding the presumption of neghgence which arises from the fact that the stock has been killed by the railroad company, where all the facts are in evi- dence, including the fact that the stock law was in force at the place in question, they must find a verdict from the preponder- ance of the evidence as a whole, and can not find a verdict against the defendant simply because of the presumption of negligence. °^ § 813. Fences and cattle-guards. — (1) The court instructs the jury that there was no law in this state which required a rail- road to fence its right of way; that no such specific duty was imposed on it; that the existence of a stock law in a district did not, of itself, operate to relieve a railroad from liability for killing stock, but that the existence of the stock law in any lo- cality is a fact which the jury may consider in ascertaining the amount of care and diligence exercised by the parties, and in determining whether the railroad was liable or not, or the extent of such liability, if any; that the jury should look to the entire facts, as disclosed by the evidence, in determining what ordinary care required of the parties ; and that the matter of a stock law or a fence or no fence could be considered by them, along with all the facts shown by the evidence, in determining the question of diligence or negligence, and whether ordinary care was or was not used.*** (2) The court instructs the jury that the law does not require the defendant to fence its road at stations or sidings where freight is received and discharged; and the defendant is not liable in an action like this for stock that may get upon the track at such point and get killed."' (3) The court instructs the jury that the defendant railroad °' Griffith V. Atlantic Coast Line R. Kingsbury v. Missouri &c. R. Co., 156 Co , 82 S. Car. 2S2, 64 S. E. 222. Mo. 379, 57 S. W. 547 ; Little v. Mc- "' Seaboard Air Line R. Co. v. Col- Guire, 38 Iowa 562 ; Indiana &c. R. Her, 118 Ga. 463, 45 S. E. 300. Co. v. Quick, 109 Ind. 295, 9 N. E. "'Indiana &c. R. Co. V. Sawyer, 109 788; Hinshaw v. Gilpin, 64 Ind. 116. Ind. 342, 10 N. E. 105. See also §8l3 INSTRUCTIONS FORMS. 912 company craims in this case that it has complied with the statu- tory requirements in regard to the fences and cattle-guards. That is their defense — that they have complied with the statutes substantially, and that they had there that day erected and in good order, fences and cattle-guards that met fully the require- ments of the statute. They claim that they had built fences both on the easterly and westerly sides of this railroad, and built a cattle-guard at the north side of this highway, and one at the south side of the highway, and proper connecting fences. That is their claim. Now, there is no claim here that the fences as built, or the cattle-guards as built, were not sufficient. The claim of the plaintiff is that they were not properly located and extended. The claim of the plaintiff is that the railroad fences did not cover the entire right of way outside of the highway. So you see the complaint is not on account of the kind of fence that had been erected there, or the kind of cattle-guard, but the complaint is of the location of the fences and the cattle- guard. Now, this statute requires the fences to be erected at highway crossings up to the line of the highway, to that point where the line of the highway and the line of the railroad right of way meet. It contemplates that railroad tracks shall not be exposed except within the limits of the highway, that outside of the highway they shall be fenced, and that part of the railroad track which is unfenced shall consist only of that part of it which lies within the boundaries of the lines of the highway. As I told you before, highways must be left open their full width by everybody, railroads included. So' this defendant, the railroad company, need not have fenced into the highway, nor upon any part of the highway, but only up to the line of the highway. So you see it is important for you to determine from the evidence where the line of the highway was, and where the line of the railroad right of way was, and the defendant was required to fence up that point where those two lines met, but not beyond that. So, gentlemen of the jury, if this defendant, the railroad company, fenced up to the line between its own right of way and the highway line, then it has done its full duty, and there can be no recovery in this 913 RAILROADS. §8x3 case. In other words, if the place where this horse was killed was a part of the highway and within the highway lines, there can be no recovery in this case. If the fences and the cattle- guards were on the highway line, then the defendant is not liable, and your verdict would be in favor of the defendant, no cause of action. On the other hand, if the defendant, the railroad company, exposed and left unfenced any material or substan- tial part of its right of way outside of the highway, then it in- creased the exposure which the public would be liable to, and if it left unfenced any part of its right of way outside of the highway, and if by reason of that the horse was killed, then the defendant would be liable. And it is the duty of the plain- tiff to trace the killing of the horse to the neglect to fence. In other words, the killing of the horse must be, in a degree, and to a certain extent, the consequence of the neglect to fence, if there was any such neglect. The mere fact that the horse was killed there does not of itself give any right of action. The question is, did the defendant neglect in its duty to fence, and by reason of that was the horse killed? The neglect of duty must be shown upon the part of the defendant. Was the killing of his horse due to the defendant's failure to fence this right of way at the point where it was its duty to fence it, viz. : at the point outside of the highway? If not, there can be no recovery, but if so there may be a recovery.'' (4) The court instructs the jury that, even if you believe from the evidence that any hogs entered the plaintiff's field, and did damage to his crop, as complained in the petition, still if you also believe from the evidence that there was a space of ground lying between the fence which the defendant had erected along the east side of its track and another fence which was upon the west side of the plaintiff's inclosure, and that said strip of ground was open to a public highway at the south end, so that hogs and other stock could pass from the public road into said strip of ground, and that it was necessary for hogs to pass through or under both of said fences, and across said interven- ing strip of ground, in order to get from defendant's inclosure " Goretski v. Au Sable &c. R. Co., 172 Mich. 623, 138 N. W. 658. 98 — Branson's Inst. § 8l3 INSTRUCTIONS FORMS. 9I4 along its track into the plaintiff's field, then the plaintiff can not recover in this action, and your verdict must be for the de- fendant.^' (5) The court instructs the jury that it is not necessary that the defendant should have erected its fence upon the line of its right of way. It had the right to locate the fence at any place between the edge of its track and the line of its right of way. Therefore, if you should believe from the evidence that there was a strip of ground between the railroad fence and the plain- tiff's fence, and that a part of the same was included within the line of the railroad right of way, but outside of the railroad fence, and that such strip of ground opened at the south end upon a public highway, and that hogs passed through or over said strip of ground, and thence under or through the plaintiff's fence, and even although, in passing over said strip of ground, they may have passed over the uninclosed portion of the right of way, still that does not entitle the plaintiff to recover, and under such circumstances, if you so find, your verdict should be for defendant."^ (6) The court instructs the jury that every railroad com- pany operating a railroad in this state is required by law to erect and maintain lawful fences on the side of the road where it passes through, along or adjoining inclosed or cultivated land, and to construct and maintain cattle-guards where fences are required to be erected sufficient to prevent horses, cattle, mules, and other animals from getting on the railroad. If, therefore, you find from the evidence that by reason of the failure of de- fendant to erect and maintain such fences and cattle-guards where its railroad passes through the inclosed land of plaintiff on his farm in R. township, in St. F. county, M., horses, cattle, mules, or other animals came into and upon said lands of plain- tiff and destroyed his crops or corn or potatoes or any part °' Kingsbury v. Missouri &c. R. Co., " Kingsbury v. Missouri &c. R. Co., 156 Mo. 379, 57 S. W. 547. On ques- 156 Mo. 379, 57 S. W. 547. See also, tion of damage to crops for lack of Hinshaw v. Gilpin, 64 Ind. 116; Mc- f ences, see Little v. McGuire, 38 Iowa Manus v. Finan, 4 Iowa 285 ; Indiana 562; Hinshaw v. Gilpin, 64 Ind. 116; &c. R. Co. v. Sawyer, 109 Ind. 342, 10 McManus v. Finan, 4 Iowa 285. N. E. 105. 915 RAILROADS. §813 thereof, then and there standing or growing, you will find for the plaintiff on the first count in his petition in such sum as you may believe from the evidence he has sustained, not exceed- ing the sum of $ ."^ (7) The court instructs the jury that, although you may be- lieve and find from the evidence in the case that plaintiff's crops were destroyed by being eaten up by cattle and hogs or other ani- mals, yet before you can find for the plaintiff you must further find by a preponderance, or greater weight of evidence, that the said cattle and hogs or other animals came upon the plain- tiff's premises by reason of the fact that the defendant company have failed to erect and maintain fences along its right of way where the same ran through plaintiff's premises or have failed to erect cattle-guards to prevent hogs, cattle, and other animals from entering plaintiff's premises/ °' Rosentingle v. Illinois Southern ^Rosentingle v. Illinois Southern R. Co., 122 Mo. App. 492, 99 S. W. R. Co., 122 Mo. App. 492, 99 S. W. 788. 788. CHAPTER LXXX. RELEASE. Skction Section 814. Performance of conditions. 817. Validity as dependent on mental 815. Conclusiveness of release. condition of releasor. 816. Necessity that terms be under- 818. Fraudulent representations in- stood by parties. ducing execution. § 814. Performance of conditions. — The court instructs the jury, if it was understood and agreed between them that as a part performance of this undertaking of theirs to pay her the hundred dollars that the hundred dollars should actually be paid before the release was effective, then the release would not be binding upon her until the money was received and accepted by her ; even a tender by the defendant would not in that case be suf- ficient to wipe out and extinguish the original claim. An accord and satisfaction means exactly what it says. It means an agree- ment as to the amount and payment of that amount by the de- fendant company and an acceptance or receipt of that amount by the plaintiff and that any time up to the time it is actually re- ceived by the plaintiff there is no satisfaction. It is the per- formance of that which it undertakes to do that renders the agreement an accord and satisfaction and binding upon the de- fendants.^ § 815. Conclusiveness of release. — (1) The court instructs the jury that the defendant has pleaded that through its claim agent H. S. W., it has made a settlement with the plaintiff for all injuries she may have received and personal property she may have lost by reason of said wreck, and in regard to this you are instructed that if you find from the evidence that said W. deliv- '■ Clark V. New York &c. R. Co., 35 R. I, 479, 87 Atl. 206. 916 giy RELEASE. §815 ered to the plaintiff the check for thirty-five dollars offered in evidence, intending it as a payment for any claim the plaintiff might have against the defendant for whatever injury she may have received in said wreck and for whatever personal property she may have lost thereby, and if the plaintiff accepted said check and executed the release offered in evidence knowing that said W. intended it as a payment for such injuries and personal prop- erty, then the plaintiff is bound thereby, and you will find for the defendant, even though you may believe that she was injured in said wreck on account of the negligence of the defendant, and that she sustained damage thereby in a greater amount than thirty-five dollars.^ (2) The court instructs the jury that if you believe from the evidence that on or about the day of the plaintiff agreed with the defendant upon a compromise of his claim for damages sued on in this case for the sum of one dollar, and the promise to employ him for one day as a section foreman, and the further promise of the general claim agent of the defendant com- pany to pay to the plaintiff the full time lost by him on account of his injuries, the same to be ascertained by a statement of the at- tending physician; and if you believe that the plaintiff then and there accepted said promise and agreement, together with the one dollar, and the employment of him for one day as a section foreman, in satisfaction and discharge of his original cause of action on account of his injuries, and that he agreed and expected to look to and demand of the defendant the sum of the time lost by him on account of such injuries, when same were ascertained by his physician, under said promise and agreement, and not to demand of defendant damages on account of his original cause of action, as it stood before such promise and agreement was made — then you will find a verdict for the defendant.^ (3) The court instructs the jury that in this case plaintiff ex- ecuted a release to the defendant for the expressed consideration of $ , and said release is valid and binding upon the plaintiff, and he can not recover herein, although you may find that defend- ant company was guilty of negligence, and that such negligence, ' Chicago &c. R. Co. v. Cain, Z7 " Gulf &c. R. Co. v. Minter, 38 Tex. Tex. Civ. App. 531, 84 S. W. 682. Civ. App. 8, 85 S. W. 477. §8l6 INSTRUCTIONS FORMS. 918 if any, caused his injury unless you believe from the evidence that at the time plaintiff executed said release his mental condi- tion was such that he did not and could not understand the nature and contents of the said release, or that the defendant, through its agents, wilfully concealed from plaintiff the real meaning and contents of said release, and falsely represented to plaintiff that the release was simply a receipt for money, and that plaintiff re- lied upon such false representation, if any such was made, and was made, and was thereby induced to sign said release, without reading same, or having it read to him, and without knowing its contents.* § 816. Necessity that terms be understood by parties. — (l) The court instructs the jury that if they believe from the evidence that the paper relied on by the defendant as a release was executed both by the plaintiff and the defendant, each under- standing and agr.eeing that the said paper was a release for all claims which the plaintiff had or might have against the de- fendant on account of the injury received by the plaintiff, then the jury are instructed to find for the defendant; but if they be- lieve that the paper produced in evidence was signed and ex- ecuted both by plaintiff and defendant with the mutual under- standing that it was for the time lost by the plaintiff for twelve days on account of his having received the injury complained of, then the jury shall not regard the paper as a release of all claims by the plaintiff against the defendant, but it shall be wholly dis- regarded by them.^ (2) The court instructs the jury that it is for you to deter- mine, from all the evidence and circumstances in the case, whether the plaintiff understood the contents of the release at the time he signed it ; and whether he intended to release, and understood that he was releasing, his claim and right of action against the defendant in consideration of the defendant furnishing him with a doctor ; and, unless you so find, you are instructed that it would not release the defendant from liability, if you further find from * Galloway v. San Antonio &c. R. "Louisville &c. R. Co. v. Crutcher, Co. (Tex. Civ. App.), 78 S. W. 32. 135 Ky. 381, 122 S. W. 191. 919 RELEASE. §8l8 the evidence, that the defendant is liable, and such release should be disregarded by you in arriving at your verdict." § 817. Validity as dependent on mental condition of re- leasor. — (1) The court instructs the jury that if you find from the evidence in this case, that the paper release read in evidence was signed by the plaintiff w^hen he was in such a mental condi- tion through pain and sickness that he could not and did not comprehend or understand its contents; and if the jury further believe from the evidence that defendant's agent took advantage of plaintiff's said condition, if you find it existed, to induce him to sign said paper without understanding its contents, intending thereby to defraud the plaintiff, then said paper release is no defense to this action.' (2) The court instructs the jury that as a defense, defend- ant pleads a settlement and release made with the plaintiff, and, in avoidance of such settlement and release, the plaintiff claims that, when such settlement was made and such release executed, he did not have the mental capacity to do such things, and you are instructed to return a verdict for the defendant unless you believe from the evidence that, at the time plaintiff made such settlement, and executed such release, he was mentally incapable of understanding the nature and effect of such settlement and re- lease.* § 818. Fraudulent representation inducing execution. — (i) The court instructs the jury that if you find from the evi- dence that G. was induced to sign the release contract by fraud- ulent misrepresentations of the defendant's agent, C, — that is to say, a contract the terms of which he did not understand, and voluntarily assented to, on account of the fraudulent misrepre- sentations, — the same would not be legally binding upon him.^ (2) The court instructs the jury that if you believe from the evidence that the release in this case was procured from the plaintiff by the defendant, or by any one for it, and that at the ' Pioneer Cooperage Co. v. Romano- • Missouri &c. R. Co. v. Craig, 44 wicz, 186 111. 9, 57 N. E. 864. Tex. Civ. App. 583, 98 S. W. 907. ' Robertson v. Fuller Const. Co., " Central of Georgia R. Co. v. Good- 115 Mo. App. 456, 92 S. W. 130. win, 120 Ga. 83, 47 S. E. 641. § 8l8 INSTRUCTIONS FORMS. 92O time the plaintiff signed the said paper he believed from what was told him before signing it that it was for the purpose of se- curing the services of a physician, and that the parties who in- duced him to sign said paper led the plaintiff to believe that he was only signing a paper for the purpose of securing the services of a physician, and that the plaintiff did so believe, you are in- structed that a release so procured would not be binding upon the plaintiff, and should not be considered by you in arriving at your verdict.^" " Pioneer Cooperage Co. v. Ro- manowicz, 186 111. 9, 57 N. E. 864. CHAPTER LXXXI. RELIGIOUS SOCIETIES. Section 819. Compensation for work per- formed for church. § 819. Compensation for work performed for church. — ( I ) The court instructs the jury that if the relations of the par- ties, the nature of the service, and all the pertinent facts, show that the plaintiff was not working for money, and that the church did not understand that pay was to be exacted, none can be de- manded.^ (2) The court instructs the jury that if the work was done under circumstances justifying the belief that no charge was in- tended, there is no liability to pay.^ (3) The court instructs the jury that if the performance of the work was voluntary, and both sides supposed the service was given spontaneously, from a desire to promote a cause the plain- tiff had at heart, no agreement to pay can be implied.^ ' Cicotte V. Church of St. Anne, 60 ' Cicotte v. Church of St. Anne, 60 Mich. SS2, 27 N. W. 682. Mich. SS2, 27 N. W. 682. ' Cicotte V. Church of St. Anne, 60 Mich. 552, 27 N. W. 682. 921 CHAPTER LXXXII. REPLEVIN. Section Section 820.. Levy on property. 822. Matters to be proved. 821. Ownership of property. 823. Verdict. § 820. Levy on property. — The court instructs the jury that if you should find from the evidence that the rails, at the time the levy was made, were in the possession of the railroad company, then the sherifif would have no right to take posses- sion as the property of (name of judgment debtor), but the mere piling of the rails upon the wharf of the railroad company would not constitute such a possession of them by the railroad company as would prevent the sheriff from making a valid levy upon them as the property of (name of judgment debtor), if you find that the rails were in fact the property of (name of judgment debtor).^ §821. Ownership of property. — (1) The court instructs the jury that if they believe, from the evidence, that, at the time the property replevied in this case was replevied, it was owned by both the plaintiff and defendant as partnership prop- erty, the jury will find the issues for the defendant.'' (2) The court instructs the jury that if they believe that plain- tiff delivered up the property in controversy to defendant, with his permission to pay the amount advanced and redeem the prop- ^ In the case from which this form session, in determining the legality of is taken there was evidence tending the levy" and "in view of the issue, to show that the rails were purchased the instruction was pertinent." There by the judgment debtor and shipped was no invasion of the province of to him, and that he received them at the jury. Coos Bay R. Co. v. Siglin, the wharf. It then became "a ques- 34 Ore. 80, 53 Pac. 504. tion for the jury to decide as to ^Reynolds v. McCormick, 62 111. which of these parties had the pos- 412. 922 923 REPLEVIN. § 823 erty in a given period, and said period elapsed without such pay- ment, then defendant's right of ownership was absolute on such failure.^ (3) The court instructs the jury that the burden rests upon the plaintiff B. to make out his case by a preponderance (that is, by a greater weight) of the evidence. Unless he has done so, your verdict should be in favor of the defendant M. If you shall believe from the evidence that at the time of the commencement of this suit the heifer in controversy was the property of the plaintiff, you will return a verdict in his favor. On the other hand, if you shall believe from the evidence that at the time of the commencement of this suit said heifer was not the property of the plaintiff, you will return a verdict in favor of the defend- ant, and also find the present value of said heifer.* § 822. Matters to be proved. — The court instructs the jury, on behalf of the defendant, that in order to entitle the plaintiff to a verdict, it is incumbent on the plaintiff to establish, by evidence in the case, that the goods and property replevied in this suit were in the possession of the defendant, or that he de- tained the same from the plaintiff at the time the suit was com- menced, and unless the jury do believe from the testimony given in this case, that said property was in the possession of the de- fendant, or that he detained the same when this suit was com- menced, then they should find for the defendant upon the issue of detention of such property only.^ § 823. Verdict. — The court instructs the jury that if the plaintiff has established the allegations of his complaint, then your verdict should be for plaintiff in so many sheep described in 'The refusal of this instruction by ''Bright v. Miller, 95 Mo. App. 270, the trial court constituted error. 68 S. W. 1061 (instruction in effect "There was certainly evidence in the told jury that plaintiff could only re- case tending to show that it was a cover upon the strength of his own sale, to become absolute upon a fail- title and not upon the weakness of ure to pay the money, and there was defendant's title), evidence that it was not paid. This "Reynolds v. McCormick, 62 111. clearly required the giving of this in- 412. struction." Sidwell v. Lobly, 27 111. 438. § 823 INSTRUCTIONS FORMS. 924 the complaint as you find belong to the plaintiff and are wrong- fully withheld by the defendant, whether such number be one hundred or a less number, and you will also find and place in your verdict what you find to be the value of the said sheep so withheld ; but if you find that the defendant did not take any of plaintiff's sheep, and that he is not wrongfully withholding any of plaintiff's sheep described in the complaint, then you should return your verdict to that effect and find for the defendant.* •Fox V. Tift, 57 Ore. 268, 111 Pac. 51, Ann. Cas. 1912 D, 845. CHAPTER LXXXIII. ' requests for instructions. Section 824. Caption and form of request. § 824. Caption and form o£ request. — Instructions pre- pared by a party to be given by the court should be entitled in the same manner as a pleading and followed by a request that the instructions submitted be given. Thus for example: State of Indiana, ) (In the Marion Circuit Court, County of Marion, j | January term, 191 5. John Smith V. William Brown. ! The defendant in the above entitled cause, at the conclusion of the .evidence and before the argument hereby requests the court to instruct the jury in writing and to give to the jury each of the following instructions numbered from one to five, inclusive, to wit, etc. 925 CHAPTER LXXXIV. SALES OF GOODS. Section Section 825. Contract of sale. 829. Warranty. 826. Delivery and acceptance. 830. Implied warranty. 827. Breach of contract. 831. Proof of warranty. 828. Proof of performance of con- 832. Breach of warranty. tract. 833. Damages for breach. § 825. Contract of sale. — (1) The court instructs the jury that, if they believe from the evidence that the sale of the ce- ment was complete, and the title to said cement passed to defend- ant at the time said cement was stored in the bins at the stock- house at S., then the risk of loss or damage to the cement was on the defendant from and after that time.^ (2) The court instructs the jury that if you shall believe from the evidence in this case that the written proposition from de- fendant to plaintiff, made on the day of in P. and read to you in evidence, was not accepted by plaintiff's purchasing agent, M., as the contract between plaintiff and defendant, but same was forwarded to the plaintiff, Company, for its ac- ceptance or rejection, then it became the duty of the plaintiff in law to accept or reject said proposition within a reasonable time — that is to say, within such time as was reasonably in contempla- tion between the parties at the time same was made and delivered to said agent; and if you shall believe from the evidence in this case that the plaintiff Company, failed to accept or reject said proposition within a reasonable time, as defined by this in- struction, then the law is for the defendant, and you will so find ; or if you shall believe from the evidence in this case that the plaintiff Company, failed to accept said proposition in the terms as made by defendant, if he made it as a proposition, but 'Cook &c. Contracting Co. v. Bell (Ala.), 59 So. 273. 926 Q27 SALES OF GOODS. § 826 in accepting same materially changed same by adding to or taking from the terms thereof, and returning it to the defendant for acceptance, then the law is for the defendant, and you will so find.^ (3) The court instructs the jury that if you shall believe from the evidence in this case that plaintiff accepted said proposition within a reasonable time and the terms of said proposition as "made by defendant, and mailed notice of the same to defendant before it received any notice of the withdrawal by defendant of said proposition, if notice of such withdrawal by defendant was given by defendant to plaintiff, then the law is for the plaintiff, and you will find for it damages as defined by instruction No. — ■ herein.^ (4) The court instructs the jury that defendant pleads in its answer that one E. S. is a necessary party to this action. With reference thereto, the court instructs you that, if you find from the evidence that said S. was not a party to the contract or con- tracts, if any made between plaintiff and defendant, and that defendant did not order the stone in question from said S., and that the arrangement, if any, between plaintiff and said S. was that plaintiff agreed either to do the right thing by said S. in pay- ment for services that said S. might render plaintiff, or if plaintiff merely agreed to give said S. some portion of the profits, if any, that he might receive from the defendant on stone furnished it, and this was the full extent of the arrangement between plaintiff and said S., then you are instructed that S. is not a necessary party to this action, and plaintiff's right to recover can not be de- feated merely because said S. is not joined in this action as one of the plaintiffs.* §826. Delivery and acceptance. — (1) The court instructs the jury that if you find from the evidence that the plaintiff was to deliver the goods in N., then I charge you that a delivery of the goods to the railroad company in N. was constructive de- livery to the defendants ; and if you find from the evidence that " Paducah Packing Co. v. J. T. Polk ' Nugent v. Armour Packing Co., Co. (Ky.), 99 S. W. 929. 208 Mo. 480, 106 S. W. 648. ' Paducah Packing Co. v. J. T. Polk Co. (Ky.), 99 S. W. 929. § 826 INSTRUCTIONS FORMS. ,928 the goods were in good condition at the time they were delivered to the railroad company, then I charge you that the plaintiff is entitled to recover/ (2) The court instructs the jury that if they believe from the evidence that the cement became the property of the defendant at the time it was stored in the bins in the stockhouse at S., and if they further believe from the evidence that the said cement was merchantable and suitable for construction work at the time it was so stored, then you should find for the plaintiff for the amount sued for, if you further believe that the amount sued for does not exceed the agreed price, less the credit to which the de- fendant is entitled for payments on account.® (3) The court instructs the jury that if it finds from a fair preponderance of the evidence in the case that the defendant purchased from the plaintiff five cars of potatoes on , 19 — , knowing that said cars were en route to C, billed to shipper's order, and directed plaintiff to have agent of Railway Com- pany, at M. to wire to St. L. office of said road to stop said cars at St. L. and notify defendant, and to deliver the bills of lading for said cars to W. F. L. at Ft. S., and draw on it for the price agreed upon, and you further find that plaintiff obeyed these di- rections, then your verdict should be for the plaintiff, notwith- standing you should believe from the evidence that the said five cars were not promptly delivered by the railway company to de- fendant, because the plaintiff would be in no way responsible for what occurred after he had complied with the directions of defendant, if you believe from the evidence that plaintiff carried out the instructions of the defendant.' (4) The court instructs the jury that if you believe from the evidence that on , 19 — , the said defendant entered into a contract with the plaintiff by which the said defendant agreed to purchase five car loads of potatoes at the price of cents ' National Chemical Co. v. National love, 73 Ark. 62S, 83 S. W. 924. See Aniline &c. Co., 3 Ala. App. 469, 57 also, Hodge v. Tufts, 115 Ala. 366, 22 So. 114. So. 422; Squires v. Gamble Robinson 'Cook &c. Contracting Co. v. Bell Commission Co., 84 Minn. 1, 86 N. (Ala.), 59 So. 273. W. 616. 'Jones- Pope Produce Co. v. Breed- 929 SALES OF GOODS. § 826 per bushel, upon condition that the said potatoes should be de- livered by the plaintiff to the Company, in St. L., early on the morning of , 19 — , then the plaintiff can not recover herein, unless you further find from the evidence that the said plaintiff did actually deliver to said Company, at St. L., on the morning of said day of , said five car loads of potatoes, or some part thereof.^ (5) The court instructs the jury that a delivery of the rail- road's bills of lading for freight shipped over its lines is a de- livery of the freight itself, and if you find from a fair prepon- derance of the evidence that the plaintiff had shipped over the line of the Railway Company five cars of potatoes con- signed to himself at C, and that he sold said potatoes to the defendant, and by its direction delivered the bills of lading for said five cars of potatoes to W. F. L. at Ft. S., then your ver- dict should be for the plaintiff.' (6) The court instructs the jury that before the plaintiff can recover in this case he must show by a preponderance of the testimony that he delivered said potatoes, or a part thereof, to the said defendant, and that the same were received by it.^° (7) The court instructs the jury that a delivery to a person designated by the purchaser is a delivery to the purchaser, and if you find from a fair preponderance of the evidence that the plaintiff was directed by the defendant to deliver the five cars of potatoes to W. F. L., at Ft. S., and that he did deliver said five cars of potatoes to said W. F. L. in accordance with said direction from the defendant, then it was a delivery to the de- fendant, and your verdict should be for the plaintiff.^^ (8) The court instructs the jury that if defendants purchased these cigars, and they were sound and free from fault at the time [they] purchased them, and after they purchased them worms developed in them, and the development of the worms in the cigars was one of the risks incident to the tobacco trade, and the defendants suffered damages in consequence of the ° Jones-Pope Produce Co. v. Breed- " Jones-Pope Produce Co. v. Breed- love, 73 Ark. 625, 83 S. W. 924. love, 73 Ark. 625, 83 S. W. 924. "Jones-Pope Produce Co. v. Breed- "Jones-Pope Produce Co. v. Breed- love, 75 Ark. 625, 83 S. W. 924. love, 73 Ark. 625, 83 S. W. 924. 59 — Branson's Inst. § 826 INSTRUCTIONS FORMS. 93O worms coming into the tobacco, the loss on that account would fall on defendants in the case, just as if a person should buy eggs, potatoes, or apples that were sound at the time they were purchased, and rot or disease should subsequently develop in them, the loss should fall on the purchaser rather than the seller." (9) The court instructs the jury that in this case the plain- tiff seeks to recover for a balance due for stone claimed to have been delivered under the contract read in evidence. The defendants resist payment and allege that the plaintiff did not deliver the stone at the time required by the contract, by reason of which the defendants were damaged, in consequence of a fall in the price of stone. The defendants also allege that the plaintiff did not actually deliver the amount of stone for which it rendered bills; also that the quality of the stone delivered by the plaintiff was not equal to that required by the contract and that in consequence thereof the defendants were damaged; and the defendants seek to recoup all the damages they claim to have thus sustained for the amount which may be coming to the plaintiff.^^ (10) The court instructs the jury that if you believe from the evidence that the defendants N. and M., accepted and used the buggy and surrey shipped to them by defendant, they ought to find for plaintiff the value of the vehicles, not to exceed $ with interest from the day of .^* (11) The court instructs the jury that if they find that the contract offered in evidence was entered into between the plain- tiff and defendant; and that the plaintiff was ready and willing and did offer to deliver, during the period of time covered by said contract, coal daily, in quantities and of the quality con- templated by the contract; and that, after receiving, consuming and paying for a portion of the coal embraced in said contract, the master of machinery and the master of transportation of the defendant rejected said coal as not satisfactory to them; and "Freeman & Turner News Co. v. "Noel v. Kauffman Buggy Co. Mencken, 115 Ga. 1017, 42 S. E. 369. (Ky.), 106 S. W. 237. " Titley v. Enterprise Stone Co., 127 111. 457, 20 N. E. 71. 931 SALES OF GOODS. § 827 that said rejection was not bona fide, but that the defendant set- ting up such rejection as an excuse thereafter refused to receive the balance of said coal from the plaintiff, then the plaintiff is entitled to recover. ^° (12) The court instructs the jury that it is a general rule of law that when goods are sold — the condition of payment being made or some other condition precedent being performed, be- fore or on delivery — then an absolute and unconditional de- livery of the goods, without requiring at the time of the delivery payment or performance would be a waiver of such pay- ment or performance as a condition precedent; and a complete title would pass to the purchaser, provided that at the time of such delivery it was the intent of the parties that it should be absolute and unconditional delivery. Though it is important, it is not absolutely imperative that the vendor declare that he does not waive any condition of the sale at the time of a de- livery to the vendee. The situation of the parties, the nature of the transaction, the presumption of honest dealing and like considerations may be taken into account in determining whether any conditions of the sale have been waived.^" (13) The court instructs the jury that if he [appellant] afterwards dealt with the furniture in question as though it were his own, and appropriated it to his own use by selling or placing in stock with his other furniture for sale, he thereby ratified the contract for the purchase of said furniture, and was bound by its provisions as originally entered into.^' §827. Breach of contract. — (1) The court instructs the jury that it was the duty of the defendant, if it claimed a short- age, to report the same within a reasonable time; and, if you find it failed to do so, you may consider that fact, together with all other facts in the case, as to whether or not it received all the goods with which it is charged.^* (2) The court instructs the jury that if they believe, from "Baltimore &c. R. Co. v. Brydon, "Gimmick Furniture Mfg. Co. v. 65 Md. 198, 3 Atl. 306, 57 Am. Rep. Sorensen, 34 Utah 109, 96 Pac. 121. 318. " Hamilton-Brown Shoe Co. v. "Albright V. Brown, 23 Nebr. 136, Choctaw Merc. Co., 80 Ark. 438, 97 36 N. W. 297. S. W. 284. § 827 INSTRUCTIONS FORMS. 932 the evidence, that the defendants contracted with the plaintiffs to deHver to plaintiffs a certain number of fat hogs at the time and in the manner stated in plaintiff's declaration; and also that plaintiffs were ready and willing to receive and pay for the hogs at the time and place and at the price agreed upon, as plaintiffs have in their declaration alleged, the defendants were bound to offer to and deliver the hogs in accordance with the terms of the contract, or pay the damages occasioned by their nonper- formance or failure to deliver the said hogs/' (3) The court instructs the jury that, as a matter of law, the plaintiff must establish every material part of its case by a preponderance of the evidence, and upon all points material to the plaintiff's case, on which the evidence does not prepon- derate in favoring the plaintiff, they must find for the defend- ants. If, therefore, you believe, from the evidence, that the stone delivered by the plaintiff to the defendants was delivered under the contract read in evidence and was of the quality called for by said contract, or was accepted by the de- fendants after an opportunity to inspect it, then you will as- certain, from the evidence, the amount that the stone so ac- tually delivered come to, at the price fixed by the contract. In determining the amount of stone actually delivered, you are not limited to the amount stated in the bills furnished, but you will determine, from all the evidence in the case, the amount of stone actually delivered. After determining what the stone ac- tually delivered come to, at the contract price, you will deter- mine, from the evidence, whether the stone was delivered at the time required by the contract, and if not, whether the de- fendants suffered any damage in consequence thereof, and you will give the defendants credit for such damage, if any. You will also determine, from the evidence, whether the stone ac- tually delivered was of the quality called for under said con- tract or whether it was accepted as being in accordance with said contract, and if it was not, then you will determine, from the evidence, whether the defendants suffered any damage in con- sequence thereof, and what it was, and give the defendants "Bird V. Foreceman, 62 111. 212. 933 SALES OF GOODS. § 83O credit therefor. After having ascertained, from the evidence, what the stone which actually was delivered amounted to, and de- duct from such amount the damage sustained by the defend- ant, if any, you will return a verdict for the plaintiff for the balance due plaintiff. If not, they will find a verdict for the defendants.^" (4) The court instructs the jury that, if the jury shall find from the whole evidence that the action of the master of trans- portation and master of machinery of the defendant in reject- ing the plaintiff's coal was not bona fide, then the plaintiff is not precluded by such rejection from recovering in this action.^^ § 828. Proof of performance of contract. — The burden is upon the plaintiff to prove by a fair preponderance of the evi- dence that he has performed his part of the contract, and de- livered the goods of the kind, character and quality specified in the contract, before he can recover the purchase-price from the defendants, unless you find from the evidence that said goods were received without objection.^^ § 829. Warranty. — ^The court instructs the jury that any positive statement or affirmation of fact and not of opinion as to the quality or condition of the thing sold made by the seller in the course of the negotiations and naturally and fairly import- ing that he intends to bind himself to its truth, and so under- stood and relied upon by the buyer constitutes a warranty.^^ §830. Implied warranty. — (1) The court instructs the jury that an implied warranty is not that the article or thing sold shall be the best of its kind, or such as might have been represented at the time of the sale, but only that such article or thing shall be reasonable, and suitable for the purpose for which it was intended to be used.^* (2) The court instructs the jury that when a known, de- "Titley v. Enterprise Stone Co., "American Standard Jewelry Co. 127 111. 457, 20 N. E. 71. v. Hill, 90 Ark. 78, 117 S. W. 781. "" Baltimore & O. R. Co. v. Brydon, '"Barnes v. Love, 141 Iowa 263, 119 65 Md. 198, 3 Atl. 306, 57 Am. Rep. N. W. 613. 318. »' Hodge v. Tufts, 115 Ala. 366, 22 So. 422. § 830 INSTRUCTIONS FORMS. 934 scribed, and definite article is ordered of a manufacturer, al- though it is stated by the purchaser that it is required for a particular purpose, yet if the known, described and definite thing that is of the kind and quality called for or ordered be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. In other words, if it should ap- pear that the defendant knew the economy jar, and knew its purposes and offices, and gave an order for it, although he may have stated that he wanted to use it for some foreign use, why, if the plaintiff shipped to him the jar that he ordered, with that knowledge on his part, he would not get the benefit of any war- ranty that it would do anything else beyond what it was or- dinarily intended for.^^ (3) The court instructs the jury that the manufacturer of an article to be delivered pursuant to an executory contract of sale impliedly warrants that the article manufactured will be made reasonably suitable for the purposes intended, and impliedly warrants that such article is free from latent defects resulting from the process of manufacture or inherent in the material used, but the manufacturer does not impliedly warrant the fit- ness of the article which he makes in accordance with the di- rections, plans, and specifications of the vendee, and for which the manufacturer is in no way responsible, except that he is re- quired to conform to the requirements of the vendee as to such fitness.^' (4) The court instructs the jury that one who sells personal property to be used for a particular purpose impliedly warrants that it is reasonably suitable for the use and purpose for which it is sold and purchased; therefore, if the jury believe and find from the evidence in this case that the note sued on was given for the purchase of two jacks, to be used and stood for breeding purposes, and to be let to service to mares on custom, and that the use and purpose for which defendant purchased said jacks was known to plaintiff when selling the same, and that the jack Rube was worthless for the purpose for which he was ""Kerr Glass Mfg. Co. v. Americus Civ. App.), 95 S. W. 617. See also, Grocery Co. (Ga. App.), 79 S. E. 381. CuUen v. Detroit Tug &c. Co., 99 ^ Braun &c. Co. v. Paulson (Tex. Mich. 23, 57 N. W. 1043. 935 SALES OF GOODS. § 832 sold, and was of no value for any other purpose, then there was a partial failure of consideration for said note, leaving the jack Frank as the only consideration therefor, and your verdict should be in favor of the plaintiff for the balance you may find due on the jack Frank, after deducting the credits indorsed on said note.^' §831. Proof of warranty. — The court instructs the jury that, in so far as the defendant relies upon a warranty of quality of the property sold and a breach of the same, the burden of proving the warranty is upon the defendant; and unless it has proved both the warranty and the breach alleged by a preponder- ance of the evidence, it will not be entitled to any benefit there- from in the suit.^^ §832. Breach of warranty. — (1) The court instructs the jury, for defendant, that if you believe from the evidence that the account sued on was for a threshing machine and that there was a contract of warranty by J. A. K., deceased, to defend- ant, that the machine was good, and that the machine was worth- less, you should find for the defendant.^' (2) The court instructs the jury that if you believe from the evidence in this case that the iron front, or some part there- of, furnished by the defendant to the plaintiff under the contract between the plaintiff and the defendant, was defective, or that the material or some part thereof in said front was defective, and that by reason of either being defective the plaintiff's build- ing was caused to fall down, then the law is for the plaintiff, and you will find for it such sum in damages as you may believe from the evidence it sustained by reason of the falling down of said building, not exceeding, however, the sum claimed in the petition, to wit, $ .^° *" Perry V. Van Matre (Mo. App.), ranty was contradictory and "it was 161 S. W. 643. the province of the jury to decide ^'Tacoma Coal Co. v. Bradley, 2 whether one was made." Wooters v. Wash. 600, 27 Pac. 454, 26 Am. St. King, 54 III. 343. 890. ""Fraternal Const. Co. v. Jackson ""In the refusal of this instruction, Foundry &c. Co., 28 Ky. L. 383, 89 S. the trial court committed reversible W. 265. See also AUington &c. Mfg. error. The testimony as to a war- Co. v. Detroit Reduction Co., 133 § 833 INSTRUCTIONS FORMS. ' 936 (3) The court instructs the jury that if you find by a pre- ponderance of the evidence that there was a sale, as thus defined, of the corn referred to in the counterclaim by S. to T., without any express warranty or condition, and also find that the corn was fairly and reasonably well suited or adapted for seed, the purpose for which it was bought, if bought, you should find in favor of the defendant, S., on his counterclaim.^^ (4) The court instructs the jury that if you believe from a preponderance of the evidence that on or about the day of , the defendant V., sold to the plaintiff two certain horses in consideration of the sum of $ , as alleged in plaintiff's petition, and if you further believe from the evidence that, as an inducement for plaintiff to purchase the horses, defendant made false and fraudulent representations to him as to the qualities of said horses, as alleged, and that if said representa- tions were material and plaintiff believed them to be true, and did not know, and could not by the exercise of ordinary care have known, whether said representations were true or false, and that V. made such representations, if any, to said J. for the purpose of inducing him to purchase the horses, then you will return a verdict for him for rescission and for the sum of $ .'= §833. Damages for breach. — (1) The court instructs the jury that if you find from the evidence that defendant was dam- aged by reason of plaintiff's not complying with its contract made with the defendant to furnish machinery as set forth in defendant's plea i, filed in this cause, in that logs on defendant's yard at or near B. were injured by worms, then the amount of such damage so suffered because of injury to said logs should be deducted from the amount owing for the purchase-money of the machinery sued for, provided you find plaintiff has not proven either one of its replications filed in this cause; and if you find that defendant's damage by reason of said injury to said logs (if suffered) is equal to or exceeds the amount due Mich. 427, 95 N. W. S62; Underfeed "Totten v. Stevenson, 29 S. Dak. Stoker Co. v. Hudson County Con- 71, 135 N. W. 715. sumers' Brewing Co., 70 N. J. L. 649, '' Underwood v. Johnson (Tex. Civ. 58 Atl. 296. App.), 166 S. W. 88. 937 SALES OF GOODS. § 833 the plaintiff, with interest, as purchase-money for the machinery sued for, your verdict should be : We the jury, find for the de- fendant." (2) The court instructs the jury that if the defendants show that there were worms in the cigars at the time they were sold to them by the plaintiffs, and that these facts were unknown to defendants, and that these worms were afterwards communicated to the defendants' stock of tobacco and cigars, and defendants suffered damages thereby, then they would be entitled to such damages as they sustained by reason of the worms communi- cated to the stock of the defendants.^* (3) The court instructs the jury that if they believe from the evidence that, in the winter of , the defendant sold the plain- tiff, and the plaintiff purchased of the defendant, the best sixty head of a lot of seventy head of cattle the defendant was then feeding, to be delivered to the plaintiff at any time between the and the days of , in the year , at the option of plaintiff, the plaintiff on such delivery to pay therefor six cents per pound of the gross weight of the same, and the defendant, in the month of , in the year , sold and de- livered to another person forty-eight head of said seventy head of cattle, and put it out of his power to comply with his agree- ment of sale to the plaintiff, then he is liable in this action to plaintiff for the difference between such contract price and what said sixty head of cattle were worth at the time and place when and where, by said agreement, they were to be delivered by defendant to plaintiff, and it makes no difference whether the price of cattle rose or fell after the time the cattle were to be delivered under the contract. ^^ (4) The court instructs the jury that if you find for the plaintiff, you will award plaintiff as damages the difference be- tween what you believe from the evidence their value would have been if they had been as they were represented in the war- ranty made by the defendant.'" *" Adams Mach. Co. v. South State " White v. Thomas, 39 111. 227. Lumber Co., 2 Ala. App. 471, 56 So. == Ferguson v. Hosier, 58 Ind. 438. 826. Measure of damages on breach by "Freeman &c. News Co. v. Menck- seller, see Brennecke v. Heald, 107 en, 115 Ga. 1017, 42 S. E. 369. Iowa Zld, 77 N. W. 1063. CHAPTER LXXXV. SLANDER AND LIBEL. Section Section 834. Essentials of slander or libel. 840. Evidence to sustain charge. 835. Malice. 841. Presumption of good character. 836. Privileged communications. 842. Jury as judges of law of libel. 837. Justification. 843. Damages. 838. Mercantile reports. 844. Criminal libel. 839. Charges of immorality. §834. Essentials of slander or libel. — (1) The court in- structs the jury that, in this action, to authorize the plaintiffs to recover they must prove by the preponderance of the evi- dence that the defendant falsely spoke of and concerning the plaintiff, B. C, substantially the words charged in the complaint, and when plaintiffs prove to the satisfaction of the jury that defendant falsely spoke or uttered of and concerning the plain- tiff, B. C, the words charged in the complaint, then they may recover such damages as they may have sustained.^ (2) The court instructs the jury that it is not necessary, in order to make an article libelous and slanderous, that the name of the person should be mentioned, provided such article refers to time, place and other circumstances with such certainty as to enable any person to know to whom the article had reference.^ (3) The court instructs the jury that if the language of the defendant under the circumstances did not charge the plaintiff with larceny and if none of the hearers understood it as charg- ing him with larceny, then the defendant is not guilty.^ §835. Malice.— (1) The court instructs the jury that if the defendant communicated to W. and others a criminal charge 'Childs V. Childs, 49 Wash. 27, 94 'Ellis v. Whitehead, 95 Mich. 105, Pac. 660. 54 N. W. 752. 'Houston Printing Co. v. Moulden, 15 Tex. Civ. App. 574, 41 S. W. 381. 938 939 SLANDER AND LIBEL. § §35 against the plaintiff, and in doing so acted wantonly and reck- lessly, you may consider such reckless and wanton conduct as bearing upon the question of malice.* (2) The court instructs the jury that in determining whether the report of the proceedings in court, as mentioned in these instructions, was a complete and accurate report, you may con- sider the evidence, if any, tending to show that prior to defend- ant's publication of said proceedings there was on file in the court of the city of , and accessible to defendant, plaintiff's reply denying defendant's charges in its answer con- tained. If, after considering this point, you believe defendant omitted to publish plaintiff's reply, not from mere inadvertence, or from a sincere belief that the publication of said reply was not of importance, but that it was omitted for the purpose of misleading the public into believing that the charges against plaintiff made in defendant's answer were not contradicted by plaintiff, then you will be warranted, if you see fit, in concluding that the omission to publish said reply was due to malice on de- fendant's part. Should you so conclude, and if you believe from the evidence that plaintiff's reply was necessary to a fair and impartial understanding of the proceedings purporting to be re- ported by defendant, then a report which omitted said reply was not a fair and impartial report, and your verdict should be against defendant's claim that the article complained of was published as a substantially fair and impartial report of the pleadings and proceedings in the cause then pending in court.^ (3) The court instructs the jury that in determining whether or not the defendants were moved by actual malice in making the publication complained of, the jury should examine the original and subsequent publications received in evidence, consider the nature of the charges, the extent of the publicity given them, their truth or falsity, whether or not the defendants had reason- able grounds for believing and did believe them to be true, and any and all other facts and circumstances proven on the trial which show, or tend to show, the attitude of the minds of the * Moore v. Thompson, 92 Mich. ' Meriwether v. Knapp, 224 Mo. 617, 498, 52 N. W. 1000. 123 S. W. 1100. § 836 INSTRUCTIONS FORMS. 94O defendants toward the plaintiff in making the publication in controversy.* (4) The court instructs the jury that if these defamatory statements were false, and defendants published them with a de- sign and intent to injure the plaintiff, or because they were mad at him for testifying against the president of the college, — if that was the motive, or one of the motives, that induced the publica- tion, — it would be malicious, and you will answer the issue "Yes."^ (5) The court instructs the jury that on the question whether there was malice in the publication of the words complained of, you have a right to consider the words of the libel itself, and the circumstances attending its publication.* §836. Privileged communications. — (1) The court in- structs the jury that under the proof in this cause, the words spoken by the defendant come under the class which the law designates as "privileged communication," and the plaintiff can not recover unless she shows actual malice — that is, hatred or ill will — on the part of the defendant, or shows a want of just cause or excuse in making the accusation.^ (2) The court instructs the jury that the publication of the article set forth in the petition is admitted, and, if the matters therein contained were true, the public had an interest in know- ing them, and it was the duty of the defendant to publish them. The occasion of the publication of the article set out in the plain- tiff's petition was therefore a privileged one, and the article aforesaid was so far a privileged communication that, in order to recover in this action, the plaintiff must prove by a preponder- ance of the evidence that the defendants made said publication with actual malice toward him.^" § 837. Justification. — (1) The court instructs the jury that although one may publish of another defamatory and malicious ° Bee Pub. Co. v. Shields, 68 Nebr. ° Moore v. Thompson, 92 Mich. 498, 750, 94 N. W. 1029. 52 N. W. 1000. 'Gattis V. Kilgo, 128 N. Car. 402, "Bee Pub. Co. v. Shields, 68 Nebr. 38 S. E. 931. 750, 94 N. W. 1029. See also Sharp 'Gattis V. Kilgo, 128 N. Car. 402, v. Bowlar, 103 Ky. 282, 19 Ky. L. 38 S. E. 931. 2018, 45 S. W. 90; Stark v. Knapp, 941 SLANDER AND LIBEL. §^37 matter, yet the truth of the matter published forms a complete defense to any action for damage for such publication; and in this case, even if the jury should believe from the evidence that defendant published of the plaintiffs any or all of the matters charged as libelous, yet if they further find from the evidence that the matters so published were true as published, then the defense has been made complete, and in that case it is immaterial whether the party composing, or the party publishing, was or was not actuated by malice against plaintiffs, and you must find for the defendant. And if the jury find from the evidence that any one of the two allegations or charges are true, then, in ar- riving at the assessment of damages, they must not allow any damages on account of such charge so proven to be true.^^ (2) The court instructs the jury that if the defendant had a perfect right by virtue of being an elector and member of the board of supervisors of said county, and it was his privilege, to give the public any information on public matters that came within his knowledge and give a reasonably correct account of whatever occurred before the board of supervisors, not neces- sarily in every word, or every particular, but as to the substance ; that is, he had a right to give a correct account of what he saw and knew. If it turns out that it is reasonably correct and he did and he did not go beyond his duty in magnifying or making false statements or anything to show express malice in the case, he had a right to so do, and is in no manner liable to the plaintiff for so doing.^^ (3) The court instructs the jury that it is your duty to find a judgment in favor of the plaintiff, and against the defendant, unless you further find from the evidence that the charges in said article, and each and every part thereof, to be true as alleged in the answer of defendant, and that the same was published with- out malice on the part of the defendant, and that its publication was with good motives and for justifiable ends.^' (4) The court instructs the jury that if the defendants pub- 160 Mo. 529, 61 S. W. 669; Gattis v. "Thomas v. Shea, 90 Nebr. 823, Kilgo, 128 N. Car. 402, 38 S. E. 931. 134 N. W. 933, Ann. Cas. 1913 B, 695. " Minter v, Bradstreet Co., 174 Mo. " Thomas v. Shea, 90 Nebr. 823, 444, 73 S. W. 668. 134 N. W. 933, Ann. Cas. 1913 B, 695. § 838 INSTRUCTIONS FORMS. 942 lished in good faith, for the reasons claimed by them, actuated solely by a desire to protect the college, and give its patrons cor- rect and full information of the entire proceedings, in such case there would be no malice, and the jury should answer the third issue "No", and this though the charges contained therein may have been both false and defamatory/* (5) The court instructs the jury that a man first assailed in public prints has a right to defend himself, and, if the facts stated in prayer are true, and the publication was made by defendant K. in good faith, and solely for the reasons given, there would be no malice as to him, and the jury should, by their verdict, excuse defendant K. on the third issue/^ (6) The court instructs the jury that anger is no justification for the use of slanderous words, and if you should find that the defendant was provoked to speak the slanderous words by any act or conduct of the husband, C. O. C, that would be no justi- fication or excuse for speaking the slanderous words of and con- cerning the wife, B. C, and should not be considered by you in mitigation of the damages, if any, suffered by her. Of course, that is based on the assumption that you find these words were uttered." §838. Mercantile reports. — (1) The court instructs the jury that plaintiffs complain that defendant published of and con- cerning them the following libelous things : First. The opinion is expressed that a local bank has been secured. Second. Their present condition is not regarded as particularly flattering, and seems to suggest cash dealings, which they claim were each of them false, malicious, and defamatory. The publication com- plained of consists in defendant giving out to others papers con- taining said charges. Now, if you find from the evidence that defendant only gave out such papers to such persons or firms or corporations as were interested in knowing the financial condition of plaintiffs at the time, by reason of having had, or being about " Gattis V. Kilgo, 128 N. Car. 402, '= Childs v. Childs, 49 Wash. 27, 94 38 S. E. 931. Pac. 660. '''Gattis V. Kilgo, 128 N. Car. 402, 38 S. E. 931. 943 SLANDER Al^D LIBEL. § 838 to have, business transactions with plaintiffs, or who were sub- scribers of defendant, and had made request upon defendant for information concerning plaintiffs, and that for such reasons, or any of them, defendant made and furnished such papers in good faith, then such publications were privileged, and do not sustain the allegations of plaintiffs' petition, and your finding must be for defendant, unless plaintiffs have proven by the greater weight of all the evidence in this case that defendant was actuated in making such publications by malice toward plaintiffs, as said term "malice" has been defined in other instructions.^^ (2 ) The court instructs the jury that the matter set forth and quoted in the preceding instruction, and contained in the report mentioned in the evidence as bearing date , and headed, "M. B., W. & R. D. G. S., M.," was libelous in its nature, if it was untrue, and charged upon and imputed to the plaintiffs in- solvency, or conduct that would prejudice them in their business or trade, or be injurious to their standing and credit as merchants or business men; and it constitutes a cause of action if it was published, unless it is shown to have been within the protection of the privilege set up by the defendant. Therefore, if you be- lieve from the evidence that the defendant did, on or about , publish of and concerning the plaintiffs, as merchants in S., M., the said report, and that the matter before specified was false, and calculated to have the effect as explained above, then the defend- ant is liable to the plaintiffs for damages, unless you believe from the evidence in the case that said report was privileged. "Publi- cation", as here spoken of, is the preparation and delivery of a copy of the alleged libelous matter to some third person. To entitle the plaintiffs to recover, it is not necessary to prove the issue or publication of numerous copies of said report, and if you believe from the evidence that, at a date prior to the institution of this suit, the defendant prepared and delivered a copy of said report to any firm, person, or corporation other than the plaintiffs themselves, then there was complete publication thereof in con- templation of law. The privilege claimed by the defendant is not absolute, but qualified, and, to entitle the defendant to the " Minter v. Bradstreet Co., 174 Mo. 444, li S. W. 668. § 838 INSTRUCTIONS FORMS. 944 benefit of the same, you must find from the evidence that defend- ant only issued and dehvered said report to such persons, firms, or corporations as were interested in knowing the financial condi- tion of the plaintiffs at the time by reason of having had, or be- ing about to have, business transactions with plaintiffs, or who were subscribers of the defendant company, and had made re- quests upon defendant for information concerning plaintiffs, and that for such reasons, or any of them, defendant made and fur- nished said report in good faith, and, unless you do so find, then said publication was not privileged; and the court further in- structs you that, even if said report was only furnished to such persons above explained, still the same was not privileged if you believe from the evidence that the same was prompted and accom- panied by actual malice upon the part of defendant. "Actual malice", as used in this connection, means that the report in ques- tion was prepared and published, not in good faith, but with in- tent to injure plaintiffs, or with a wilful and wanton neglect of the rights and interests of the plaintiffs, and, if you believe from the evidence that there was such actual malice in the furnishing of the said reports, then the same was not privileged, as claimed by the defendant. If for any reason, as before explained, you find that the said report was not privileged, and if you also find it was published concerning the plaintiffs as merchants, and the part above specified was false, and was calculated to have the effect above explained, and was published by defendant as before explained, then you should find the issues for the plaintiffs, and assess their damages at such sum as you think proper and just under the evidence and instructions in the case, not to exceed, however, the sum of one hundred thousand dollars.^^ (3) The court instructs the jury that the plaintiffs' right to recover in this case depends upon, and is limited to, the falsity and publication, as elsewhere explained, of the following clauses of the report dated , mentioned in the evidence, to wit : "The opinion is expressed that a local bank has been secured." "Their present condition is not regarded as particularly flattering, and seems to suggest cash dealings." While you should take into " Minter v. Bradstreet Co., 174 Mo. 444, IZ S. W. 668. g45 SLANDER AND LIBEL. § 838 consideration the whole of said report, in order to ascertain the meaning and significance of said part of it, still the fact that the other parts of said report may be true does not prevent the plain- tiffs from recovering on said part, quoted above, if you find from the evidence that it was untrue ; on the other hand, the plaintiffs are not entitled to recover on account of the falsity of any part of said report other than the clauses above set forth. Therefore, if you find from the evidence that the above-mentioned part was false, and imputed to the plaintiffs insolvency, or conduct which would prejudice them in their business or trade, or be injurious to their standing and credit as merchants or business men, and was published as elsewhere explained, then the plaintiffs are en- titled to recover damages, to be estimated under all the instruc- tions in the case." (4) The court instructs the jury that the defendant, being a corporation, can only act through its officers and agents, and is responsible for the wilful, wanton, reckless, or malicious acts of its officers or agents, done within the scope of their employment ; and if you believe from the evidence that one or more of the agents and officers of the defendant who were engaged in furnish- ing said report of , or in collecting or compiling the informa- tion for the same, were actuated by express or actual malice, or ill will toward plaintiffs, or acted with wilful or wanton neglect of the rights of plaintiffs, or with a reckless disregard of the consequences of their acts and conduct, in the performance of the services imposed upon them by the defendant in relation to said report, then the acts, conduct, and motives of such officers or agents in that regard were the acts, conduct, and motives of the defendant, and the defendant is chargeable with actual or express malice in respect to said report.^" (5) The court instructs the jury that in reaching a conclusion as to whether or not the defendant, through its agents, furnished as true reports the statements set forth in the other instructions, knowing them to be false, or furnished the same in order to in- jure the plaintiffs, or with a wilful neglect of the rights and in- terests of the plaintiffs, or with a reckless disregard of the con- "" Minter v. Bradstreet Co., 174 Mo. "> Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668. 444, 72 S. W. 668. 60 — Branson's Inst. § 839 INSTRUCTIONS FORMS 946 sequences of the act, you may take into consideration all the facts and circumstances detailed in evidence, giving to each part thereof such weight as you think it is entitled to.^^ (6) The court instructs the jury that even if they should be- lieve from the evidence in this case that W. P., who was at the time a correspondent of defendant company at S., M., wrote any letters containing any damaging reports of plaintiffs to S., P. of N. Y., yet this defendant is not liable in this cause for such act of said P., or for any damages plaintiffs may have sustained thereby.^^ § 839. Charges of immorality. — The court instructs the jury that this is a good case to submit to twelve men in ■ county, to say what damages a plaintiff shall have who has been treated as B. has. Has he been injured, or has the defendant pur- sued a proper and justifiable course in which to treat a citizen, who is a man of good character, and where the defendant does not set up the truth? Or has the defendant, while the plaintiff is away, tried to find out what the truth is, and then published the libel with the truth, with the allegation of the wife? Now, you will have this article before you. It is put in the declaration ex- actly, I understand, as it was printed, and the first question is: Do you find that to be, as I have suggested, — that paragraph with the whole article, — to be practically a charge of adultery? If it is, and it is not true, — and it is not claimed to be true, — ^then the plaintiff is entitled to whatever damages you think a man is en- titled to, who has a good character, and who is above reproach, who is accused in a public journal like the journal of that crime, and sent out under the circumstances which this was; be- cause you are to take in mitigation, if there is anything in miti- gation of it, — you are to take into consideration that the defend- ant had published what was published in , that the article was not true, so that, when the defendant published this article, it had not only the fact that B., but that Dr. B. also, denied that there was any truth in that accusation. But still the defendant published it with their denial. Now, it is for you to say whether "" Minter v. Bradstreet Co., 174 Mo. '" Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668. 444, n S. W. 66a 947 SLANDER AND LIBEL. § 84O the defendant is justified in doing thdt, or whether, when the de- fendant found out both from the plaintiff and his wife, acting separately and from different sources, that there was not a word of truth in the article, that it was a gross libel, whether the de- fendant can go on and publish it, and then set up as an excuse that the defendant consulted both the plaintiff and his wife, and that they both said that it was not true. And, if you say it is a libel under the rules I have given you, you are to say what the damages are.^' §840. Evidence to sustain charge. — (1) The court in- structs the jury that under the evidence in this case, each part of the entire publication set forth in plaintiff's petition is entitled to equal credit with all other parts, and, in arriving at a verdict, the article alleged to have been published is to be construed by you as a whole, and each part given such construction as will make it consistent, if possible, with all the other parts of the same writing.^* (2) The court instructs the jury that now you have heard tes- timony as to all these facts, and I think, comparing the testimony which you have heard with the description of the person who is said to have beaten his wife as charged in the libel, that you will have no difficulty in arriving at a conclusion whether or not S., the plaintiff in this case, was the person who was charged with having committed the offense, the charge of which constituted the libel. Of course if you find that the article did not refer to S., then there is an end to this case, and of this case you need go no further in your deliberations, because if he has not been libeled there is no cause of action, and nothing more to be said about it. If, however, you find from evidence that he was the person men- tioned and described in this article, and that the article which is ^ Bishop V. Journal Newspaper Co., cation or mitigation, see Minter v. 168 Mass. 327, 47 N. E. 119. See also, Bradstreet Co., 174 Mo. 444, li S. W. Bennett v. Salisbury, 78 Fed. 769, 24 668; Upchurch v. Robertson, 127 N. C. C. A. 329; Hibner v. Fleetwood, Car. 127, il S. E. 157. 19 Ind. App. 421, 49 N. E. 607; "Thomas v. Shea, 90 Nebr. 823, Swartzel v. Dey, 3 Kans. 244. Justifi- 134 N. W. 933, Ann. Cas. 1913 B, 695. § 841 INSTRUCTIONS FORMS. 948 a libelous article was a libel upon him, then you will have to go one step further.^^ §841. Presumption of good character. — The court in- structs the jury that, in the absence of evidence to the contrary, the law presumes the reputation and character of a man to be good. That the board of president and directors of the St. L. public schools had no right to engage any one to lobby for or against or work for or against any bill in the legislature affecting in its provisions their terms of office, and to appropriate or expend any of the public funds under their control for such purpose; nor had any officer of theirs, as a representative of the board, the right, nor was it his duty, in his official capacity to lobby for or against any such bill, or work for or against any such bill affect- ing their terms of office, and to receive public money of the school fund for expenses in such employment ; and that any such conduct and appropriation of money or acceptance of the same under such appropriation is without warrant of law, is against the pohcy of republican form of government, and can properly be criticized, commented upon, and rebuked by any paper or individual in any appropriate and proper terms. For, while any individual is per- mitted, and often is moved by duty, to present by way of petition or public argument his views and opinions and reasons for or against any measure pending before the legislature of the state, this' right belongs to him as a constituent part of the sovereignty, and can not be employed by an individual acting officially, or by public officials while serving the people, and intrusted only with certain duties, responsibilities, and trusts. It is' their duty to carry out the law within the limits of the powers conferred upon them, and not otherwise to either persuade, direct, or force legis- lation, or attempt so to do, in regard to matters affecting their terms of office, or duties relating thereto. That a lobbyist is one who frequents the lobby or precincts of a legislature or other de- liberative assembly with the view of influencing the votes of mem- bers, or who solicits or seeks to influence the votes of mem- bers, or seeks to influence their official action, whether in the lobby of the legislature or elsewhere. The court further instructs you ■^ Stokes V. Morning Journal Assn., 72 App. Div. 184, 76 N. Y. S. 429. Q49 SLANDER AND LIBEL. § 843 that, if you believe from the evidence that any witness has wil- fully sworn falsely to any material- fact, you may reject and dis- regard all of the testimony of such witness.^" § 842. Jury as judges of law of libel. — ^The court instructs the jury that the instructions given to the jury in this case are for the purpose of aiding you to arrive at a correct verdict. They contain, in the opinion of the court, the law necessary to be con- sidered, under the pleadings and evidence, by you, in arriving at your verdict. They are intended to be — and in the judgment of the court, they are — consistent each with the other, and should all be considered by the jury together. You are further in- structed that in this case, while you should consider, yet you are not bound by, the instructions of the court. You are not only the sole judges of the weight to be given to the testimony, and of the facts, but, under the constitution and law of Missouri, you are yourselves the sole judges of the law of libel, as well as of the facts." § 843. Damages. — (1) The court instructs the jury that if you should find that the article in question was published wan- tonly, recklessly, and with an utter disregard as to whether it was true or false, then I charge you the plaintiff is entitled to recover exeniplary and also compensatory damages.^^ (2) The court instructs the jury that if they find their verdict in favor of the plaintiff, the measure of damages is such an amount as in the opinion of the jury will compensate the plain- tiff for the injury to his feelings and character occasioned by the words so spoken, and also for such injury as was the mate- rial, direct and reasonable consequence of such words, and they may also award exemplary and punitive damages as a punish- ment to defendant.^" (3) The court instructs the jury that if you find this is a charge of adultery, or that the article, as a whole, has a tendency to injure the standing and character of the plaintiff, and hold '" Stark V. Knapp, 160 Mo. 529, 61 ^ Graybill v. De Young, 140 Cal. S. W. 669. 323, 73 Pac. 1067. ''Arnold v. Jewett, 125 Mo. 241, 28 "^Blumhardt v. Rolir, 70 Md. 328, S. W. 614. 17 Atl. 266. § §43 INSTRUCTIONS FORMS, 95O him up to disgrace, then you come to the question of damages. It is not a case, if you find that to be a charge of adultery, where the plaintiff has to prove special damages, to show that he lost this or that patient, because the jury have a right to say, when a man is charged with a crime, that that does him an injury, and to say how much his damage shall be, without special proof of dam- ages. He is entitled to damages for anything he suffered by way of personal feeling — grieving — on account of such a charge being published. And you have a right to consider what a citizen of good standing, — how he would feel to have an article of that kind published about him, accusing him of having succumbed to the pretty charms of the caterer's wife, under the circumstances stated. You have a right to consider what would be the injury to any honorable man's feelings by having such a charge as that published in the Journal, in the way this was published and circulated among his friends and neighbors. And he is entitled to damages on that account, because it is what a man suffers in consequence of a libel, and that is one of the elements. He has told you himself in some degree how it affected him, and how it affected the business that he was engaged in, and it was a source for a long time of jest, but of more serious matter than jest, among his friends. That may be taken into consideration in de- termining what the damages are. In other words, being just to the Journal, and being just to H. B., you are to say what is a reasonable compensation in dollars and cents for having such an article as that published under the circumstances that this was published; and all the natural results coming from that article, in the way of damages, he is entitled to recover. You can not give more than the ad damnum in the writ, dollars ; and you can not give less than nominal damages; and you have all the latitude between those two sums in determining what the damages are to the plaintiff, and I do not see that I can aid you any fur- ther in regard to the matter.^" ""Bishop V. Journal Newspaper Co., nal Co., 123 Mich. 608, 82 N. W. 243; 168 Mass. 327, 47 N. E. 119. See fur- Hibner v. Fleetwood, 19 Ind. App. ther on charges of immorality, Ben- 421, 49 N. E. 607 ; Emerson v. Miller, nett V. Salisbury, 78 Fed. 769, 24 C. US Iowa 315, 88 N. W. 803; Swartzel C. A. 329; Mathews v. Detroit Jour- v. Dey, 3 Kans. 244. 55 1 SLANDER AND LIBEL. § 843 (4)' The court instructs the jury that if you find the issues for the plaintifif, you may allow as compensatory or actual damages such fair and reasonable compensation that you find naturally resulted from the speaking of the words complained of, and also for any pain or anguish of mind that you find was caused thereby.^^ (5) The court instructs the jury that if you find for the plain- tiffs, then, in assessing the damages, you are not restricted to the mere pecuniary loss, if any, which plaintiffs may have sustained by reason of the report complained of, but, in addition thereto, you may inflict damages for example's sake, and by way of pun- ishment of the defendant, and, in estimating the same, you will take into consideration all the facts and circumstances detailed in evidence, and award such damages as will be a compensation and adequate recompense for the injuries sustained, and such as may serve for a wholesome example to others in like cases, not exceeding, however, the sum of one hundred thousand doUars.^^ (6) The court instructs the jury that, in making their verdict, they may take into consideration all the facts and circumstances as detaited by the witnesses, and if the jury find for the plaintiff, in estimating the damages which they may think plaintiff has sustained the jury may take into consideration and allow the plaintiff for the mortification to his feelings suffered from the act of defendant complained of and may add thereto as punitive damages such amount as will adequately punish the defendant for such act and serve as a warning to prevent others from be- ing guilty of a like act." (7) The court instructs the jury that if you find for the plain- "Vanloon v. Vanloon, 159 Mo. libel or slander of another for the App. 255, 140 S. W. 631. reason that the wrongdoer was with- " Minter v. Bradstreet Co., 174 Mo. out malice. * * * !„ slander, the 444, 73 S. W. 668. words are always intentionally spo- °°In approving this instruction, the ken, whatever meaning may be im- Supreme Court of Missouri said: puted to them. * * * Malice, such "Defendant insists that punitive dam- as the law implies, is the very gist of ages in suits for slander are only re- the action for slander. * * * coverable when the wrongdoer was There seems no just ground for dis- actuated by actual or express malice tinguishing between malice in fact as distinguished from malice implied and malice in law in respect to the by law. No one is excused for the right to exemplary damages in ac- § 843 INSTRUCTIONS FORMS. 952 tiffs under other instructions, the damages may be compensatory, or punitive and compensatory. Compensatory damages are to be given when the evidence satisfies the jury that the plaintiffs have sustained material or substantial injury, and that such in- jury was the result of the wrongful act of the defendant, and compensatory damages should be a sum sufficient to compensate the plaintiffs for such injury. Punitive damages are awarded for the purpose of punishing the defendant for the wrongful act, and setting an example before the community, but are not allowed unless the evidence is sufficient to satisfy the juiy that in doing the thing complained of the defendant was actuated by feelings of ill will or hatred toward the plaintiffs, or reckless disregard of the consequences of the act.^* (8) The court instructs the jury that, if your verdict is for plaintiff, in addition to compensatory damages, you may, if you think proper, under all the facts and circumstances shown in the evidence, assess in plaintiff's favor such further sum as exemplary or punitive damages, or smart money, as in your judgment, con- sidering all the facts and circumstances in the case in evidence, you believe should be assessed against defendant by way of pun- ishment for the act complained of, and to serve as a warning to prevent defendant and others from being guilty of a like act. And in determining such damages, you may take into considera- tion the motive or purpose of defendant in making the publica- tion as you may find from the evidence; and in determining the motive or purpose you may consider any information concerning or relating to the subject-matter of the libel which defendant re- ceived before the publication complained of and on which you may believe that it acted, and any other publication of defend- ant as shown in the evidence, whether published before or after the publication of the day of , in the year . And weighing all these matters, you may award plaintiff such ex- emplary or punitive damages, if any, as you may deem proper.'* (9) The court instructs the jury that, if their finding makes it tions for libel and slander." Calla- '* Minter v. Bradstreet Co., 174 Mo. han V. Ingram, 122 Mo. 355, 26 S. W. 444, 73 S. W. 668. 1020, 43 Am. St. 583. ^ Meriwether v. Knapp, 224 Mo. 617, 123 S. W. 1100. 553 SLANDER AND LIBEL. § 844 necessary for them to consider the question of damages, they must determine them, not arbitrarily, but by the sound, tem- perate, deliberate, and reasonable exercise of the functions vested in them by law, and they can not allow any damages sustained by plaintiffs on account of any derogatory reports put in circulation or published by any one other than defendant.^" §844. Criminal libel. — (1) The court instructs the jury that it is proper to remind you that this is not an action brought by A. against C. to recover damages for injuries or supposed in- juries sustained by the alleged libel. It is not a private, but a public, prosecution, conducted by the people of the state purely for public purposes. The publication of a libel has a tendency to provoke a breach of the public peace, which the law is solicitous to maintain and preserve. Persons feeling themselves injured by such publications are incited, in many instances, to seek satisfac- tion by personal violence inflicted upon the supposed libeler. It is the precautionary policy of the law, in the interest of the preservation of the peace of society, to discourage such violent remedies, involving a breach of the peace ; and the law has there- fore provided for the punishment of the libeler, as being one who wantonly puts the public peace at hazard, by printing and pub- lishing untrue and malicious attacks on private character.^^ (2) The court instructs the jury that our law provides that in all prosecutions for libel the jury, after receiving the direction of the court, shall have the right to determine, at their discretion, the law and the fact. In construing this law you are instructed to review carefully the whole case, looking to these instructions for the law, and to the evidence for the facts, and, after * * * both and all, then with a rigid regard for the rights of the people and those claimed to be injured on the one hand, and as rigid and watchful care for the rights of the defendant on the other, seek to determine the truth of the issue. As to the right of the jury to determine the law and the fact, you are instructed that if the jury can say on their oaths that they know the law better than the court does, they have the right to do so, but before as- " Minter v. Bradstreet Co., 174 Mo. " People v. Crespi, 115 Cal. 50, 46 444, 73 S. W. 668. Pac. 863. See also People v. Seeley, § 844 INSTRUCTIONS FORMS. 954 suming so solemn a responsibility they should be sure that they are not acting for caprice and' prejudice, that they are not controlled by their will or their wishes, but from a deep and confident conviction that the court is wrong, and they are right. Before saying this on their oaths, it is their duty to re- flect whether, from their habits of thought, their study and ex- perience, they are better qualified to judge of the law than the court. If, under all these circumstances, they are prepared to say that the court is wrong in its exposition of the law, the statute has given them that right.^^ 139 Cal. 118, 72 Pac. 834; State v. "State v. Heacock, 106 Iowa 191, Heacock, 106 Iowa 191, 76 N. W. 654. 76 N. W. 654. CHAPTER LXXXVI. STREET RAILWAYS. Section 845. Duty to equip cars with fenders. 846. Duty to equip cars with efficient brakes. 847. Relative rights of parties on tracks. 848. Care to be exercised in operation of cars. 849. Duty of motorman to keep car under control. 850. Violation of ordinances. 851. Speed of cars. 852. Duty of motorman to keep look- out. 853. Duty of motorman to signal. 854. Right of motorman to assume that traveler will leave track. 855. Right of motorman to assume that vehicle will not be driven in front of his car. 856. Care to be exercised after see- ing person in perilous position. Section 857. Duty toward children. 858. Injuries to animals. 859. Care toward frightened horses. 860. Collision with runaway teams. 861. Care at railroad crossing. 862. Tracks above street grade. 863. Snow and ice on tracks. 864. Wanton injuries. 865. Presumption of negligence. 866. Burden of proof of negligence. 867. Contributory negligence. 868. Contributory negligence as prox- imate cause. 869. Imputed negligence of parents of children. 870. Doctrine of discovered peril. 871. Duty of traveler to look and listen. 872. Recklessly driving on track in front of approaching car. 873. Damages recoverable. §845. Duty to equip cars with fenders. — (1) The court instructs the jury that it is the duty of the defendant in equipping its cars to provide reasonable and proper safeguards in general use in order to prevent or minimize injury, in case of accident. In this connection, you may consider the effect of the absence of a fender upon the car wrhich did the damage, upon the duty of the motorman to use more care in controlling the car without such device.^ (2) The court instructs the jury that, if you find that such car did not have a fender, you can not find against the defendants 'Love V. Detroit &c. R. Co., 170 Mich. 1, 135 N. W. 963. 955 § 846 INSTRUCTIONS FORMS. 956 upon that alone, unless you find also from the evidence that, if the car had had a fender, the accident might have been averted thereby.^ (3) The court instructs the jury that, whether or not the de- fendant, as a duty to the public, should have provided a fender as a necessary part of the equipment of the car in the interest of safety to the public or to persons who may come or be upon or in the vicinity of the defendant's cars is a question of fact to be determined by you, as jurors, from the whole evidence. If you shall be therefrom affirmatively satisfied, in the manner stated, that it was such duty of the defendant to provide and maintain a fender, in such case you should so find. If not so affirmatively satisfied that it was the duty of the defendant to operate its cars with a fender, in such case you should so find.^ § 846. Duty to equip cars with efficient brakes. — (1) The court instructs the jury that the plaintiff, H., had the right to drive down S. street, if he did so, with his buggy wheels between the car rails, but it was his duty upon the approach of the car, if he had notice thereof, to get off the track as early as prac- ticable thereafter. It was further the duty of the defendant to use reasonable care to provide for the use of its motormen cars equipped with good and sufficient brakes and to keep them in such condition as that the speed of the cars could be properly controlled. It was further the duty of the defendant to use ordinary care to keep a lookout for travelers and pedestrians on said car track and to keep his car under such control as that it could be stopped within a reasonable time after the discovery of peril, if any, to such travelers; and the court instructs the jury that, if the defendant's motorman saw the plaintiff in time, or could by the exercise of ordinary care have seen him in time, to avoid his injury, and yet did not do so, or if the defendant's motorman was carelessly and negligently running said car at such speed as that he could not and did not stop the same within a reasonable time after the discovery of the plaintiff's peril, if '' Spiking V. Consolidated R. &c. ' Fisher v. Waupaca Elec. Light Co, 33 Utah 313, 93 Pac. 838. &c. Co, 141 Wis. SIS, 124 N. W. lOOS. 957 STREET RAILWAYS. § 847 he did discover it or could by the exercise of ordinary care have discovered it, or if the defendant's brakes were in such condi- tion as that the car could not be stopped within a reasonable time after the discovery of the plaintiff's peril, if it was discovered in time to avoid plaintiff's injury, and as the result of these facts, or any of them, the plaintiff was injured, then the jury ought to find for the plaintiff.* (2) The court instructs the jury that if they believe from the evidence that, when the horses of the truck came in sight of persons on the defendant's car, the said car was at such a distance from the point of collision that the accident might have been averted but for the want of a better appliance in use on other roads, or the crowding on the platform of passengers, prevent- ing the motorman's use of his machinery, then the defendant company was guilty of negligence and the jury must find for the plaintiff, even though they believe that the motorman on the car did all in his power to stop his car, unless they believe that the negligence of plaintiff contributed to the accident. ° § 847. Relative rights of parties on tracks. — (1) The court instructs the jury that neither the defendant, for the operation of its cars, nor the plaintiff for crossing the street, had the ex- clusive right to the use of T. avenue at its intersection with S. street west. Neither had a superior right over the other, and each would be obliged, in so far as the undertaking in which each was engaged, and the car or vehicle each was using, would reasonably permit, to take reasonable precaution to avoid col- lision each with the other.^ (2) The court instructs the jury that, while the plaintiff had the right to use the roadway of the defendant street railway company for the travel that plaintiff was engaged in at the time of the alleged accident, still the court further instructs the jury that in such case the rights of the plaintiff were subordinate to the rights of the defendant so to use said railway, and the plain- ' Frankfort &c. Trac. Co. v. Hu- right, 92 Va. 627, 24 S. E. 267, 32 L. lette, 32 Ky. L. 732, 106 S. W. 1193. R. A. 220, 53 Am. St. 839. "Richmond R. &c. Co. v. Garth- "Stanley v. Cedar Rapids &c. R. Co., 119 Iowa 526, 93 N. W. 489. § 847 INSTRUCTIONS— FORMS. 958 tiff was in duty bound to yield the right of way to defendant's car and to keep out of the way of said car, and the court further says that the plaintiff, in using said roadway for said travel, must have exercised ordinary care in discovering the approaching car in question, and in keeping off the track and out of the way of defendant's car, and if the jury believe from the evidence that plaintiff on the occasion in question failed to exercise said care, then the law is for the defendant and the jury should so find/ (3) The court instructs the jury, for the plaintiff, that while it is true that the defendant had a right to a free and unob- structed track over which to run its cars, E. L. S. had a right to cross its track with his automobile ; and even though you may believe that S. was negligent in the manner in which he handled his automobile at the time it was injured, still, if you further believe that the proximate cause of the injury to said automobile was the failure of the motorman in charge of defendant's car to do all that he could, after seeing the danger of said automo- bile, to avoid striking it — that is, all that he could with safety to his car — ^you will find for the plaintiff, and assess its damages at what the evidence shows them to be, not to exceed the amount sued for.^ (4) The court instructs the jury that if you find from the evidence that the railroad track of the defendant at the point where the accident occurred is laid or located upon the public highway or street in the town of L., then the plaintiff would have the right to pass over the track, in the exercise of due care, and would not be confined to any regular or particular crossing." (5) The court instructs the jury that a street railway com- pany has no right to the exclusive use of any part of the street upon which its track is laid, and all persons have equal right to the use of the same for travel over and across the street, and the degree of diligence which the law imposes upon a street car company is that care which a man of ordinary prudence would exercise under like circumstances. This charge, though 'Frankfort &c. Trac. Co. v. Hu- ployers' Liability Assur. Corp. lette, 32 Ky. L. 732, 106 S. W. 1193. (Miss.), 60 So. 213. ' * Delta Elec. Light &c. Co. v. Em- 'Oberstock v. United R. Co. (Ore.), 137 Pac. 195. 959 STREET RAILWAYS. § 848 given you at the request of the plaintiffs, is given as a part of the law of this case, and you are to be governed thereby.^" (6) The court instructs the jury that in running upon the public highway where the plaintiff's intestate, E. B. F., was in- jured, the rights of the company's cars were not superior to those of any other vehicle, but simply equal, and said F. had the right to drive either across or along the track just as freely as upon any other part of the street, so long as he did not ob- struct the cars or negligently expose himself to danger. He had the right to assume that the servants of the defendant op- erating said car would give the proper signals and not run at an excessive rate of speed at that crossing, and he had the right to drive his wagon across or even along the track in full view of the approaching car if, under all the circumstances, it was consistent with ordinary prudence to do so. And if the jury believe from the evidence that, under all the circumstances by which said F. was then surrounded, it would have been reason- ably apparent to an ordinarily prudent person that, if the de- fendant's servants should use ordinary care in running and con- trolling said car, he could drive across the track without danger of a collision, then said F. was not guilty of negligence in driv- ing across said tracks ; and if the jury further believe from the evidence that, under such circumstances, the said servants of the defendant did not use ordinary care in operating said car in one or more of the particulars alleged in the declaration, and that as a direct and proximate result thereof the said F. was injured as therein alleged, they should find for the plaintiff.^^ § 848. Care to be exercised in operation of cars.- — (1) The court instructs the jury that, whether a motorman was guilty of negligence or not depends upon whether he acted as a rea- sonably prudent and careful motorman would have done under similar circumstances.^^ (2) The court instructs the jury that, if the motorman should, " San Antonio Trac. Co. v. Kumpf " Birmingham R. &c. Power Co. v. (Tex. Civ. App.), 99 S. W. 863. Norton, 7 Ala. App. S71, 61 So. 459. " Norfolk &c. Trac. Co. v. Forrest, 109 Va. 658, 64 S. E. 1034. § 848 INSTRUCTIONS FORMS. 960 by reason of excitement or otherwise, do something which an ordinarily cautious and prudent motorman would not have done, or failed to do under the same circumstances, then the doing or failing to do that thing would be negligent.^^ (3) The court instructs the jury that while the defendant had a right to operate its cars in the streets of the city of L., yet it was required to use reasonable care to operate its cars on such public streets with due regard to the lawful and customary use of such streets by others; and in this case, if you believe, from a preponderance of the evidence, that the defendant, at the time deceased was killed, was not operating the car in ques- tion with regard to the lawful and customary use of the streets, at the place where the collision occurred, by others, but was guilty of negligence in the operation of said car, as charged in the declaration of some count thereof, and that such negligence caused the death of the plaintiff's intestate, and that the plain- tiff's intestate, at and before he was injured, was in the exer- cise of ordinary care for his own safety, then you should find the defendant guilty/* (4) The court instructs the jury that, the issues you are sworn to try in this case are as follows : Was the electric car which collided with the wagon in question carelessly and im- properly driven or managed by the servant or servants of the defendant? Was the said electric car traveling at an unneces- sarily high or dangerous rate of speed? Did the servant or servants of defendant negligently fail to ring a gong or bell at the time and place in question? Did the servant or servants of defendant in charge of said car know that W. was in a po- sition of peril in time to have stopped the car in time to have avoided the collision by the use of reasonable care on their part ? Could the servant or servants of defendant in charge of the, electric car, by the use of reasonable care, have seen that W. was in a position of peril in time to have stopped the said car before the collision? Was W. at and just before the time of the col- lision using ordinary care and caution for his own safety? If '" Birmingham R, &c. Power Co. v. " Smiley v. East St. Louis &c. R. Norton, 7 Ala. App. 571, 61 So. 459. Co., 256 111. 482, 100 N. E. 157. 961 STREET RAILWAYS. § 848 you conclude that the greater weight of the evidence does not show that W. was using such care and caution for his own safety, you need not concern yourselves with the other issues, because in no event can the plaintiff be entitled to recover a verdict unless it has been shown by the greater weight of the evidence that such care and caution was used by W. If you do find from the greater weight of the evidence that such care and caution was used by W., you will examine the evidence bearing upon the other issues, and if you do not find the greater weight of the evidence, taken as a whole, will warrant you in answering one or more of them in the affirmative, you should find the defendant not guilty.^" (5) The court instructs the jury that in determining whether the defendant was negligent, you will consider the definition of "ordinary care" and "negligence" elsewhere given you in these instructions; and you will consider, as shown by the evidence, the nature and character of the business in which the defendant was engaged, the location where the accident is alleged to have occurred, and the surroundings thereabouts; whether it was light or dark at said place at said time ; the rate of speed at which a street car might lawfully have been running at the time and place where it is said that plaintiff was injured ; the rate of speed at which said car was being run at said time; what sounds or signals, if any, were or should have been given from said car at or immediately before the happening of the accident in ques- tion; what the motorman of said car did, or should have done, as he ran said car along the street at said time and place ; what said motorman did or should have done after discovering the plaintiff, his team and wagon; what said motorman knew or in the exercise of ordinary care should have known; what said motorman did, or in the exercise of ordinary care should have done, together with any other facts or circumstances disclosed by the evidence showing or tending to show that the defendant was or was not negligent as alleged by the plaintiff in his peti- tion." " Chicago City R. Co. v. O'Donnell, " Doherty v. Des Moines City R. 208 111. 267, 70 N. E. 294. Co., 144 Iowa 26, 121 N. W. 690. 61 — Branson's Inst. § §49 INSTRUCTIONS FORMS. 962 (6) The court instructs the jury that at the time the acci- dent occurred, the defendant was operating heavy, rapidly mov- ing cars propelled by electricity, dangerous to persons and prop- erty in the streets where men, women, and children were and had a right to be, and capable of causing serious injury and death, unless properly controlled. It was therefore the duty of the defendant to exercise in the control and management of its cars at this time and place a degree of care commensurate with the peril involved.^'' (7) The court instructs the jury that the duty of ordinary care to prevent injury to persons or property from the running of street cars is reciprocal on the company operating the cars and the general public using the streets. Ordinary care is such as a man of reasonable prudence and caution would exercise un- der the circumstances.^' (8) The court instructs the jury that unless it appears from a preponderance of the evidence that the automobile was struck by the street car, and not that the streek car was struck by the automobile, then you will find for the defendant.^® (9) The court instructs the jury that the defendant is only required to use ordinary care in the operation of its cars, and the plaintiff is required to use the same degree of care — that is, ordinary care — in the use of the streets, and in crossing or going upon the track of the defendant. By ordinary care is meant such care as an ordinarily prudent person would use under the particular circumstances involved.^" § 849. Duty of motorman to keep car under control. — (1) The court instructs the jury that unless they believe from the evidence that there was a pathway across defendant's track lead- ing to the spring, which was used by persons going from the said spring at and prior to the happening of the injuries of "Love V. Detroit &c. R. Co., 170 ployers' Liability Assur. Corp. Mich. 1, 13S N. W. 963. (Miss.), 60 So. 213. "Delta Elec. Light &c. Co. v. Em- "Traver v. Spokane St. R. Co., 25 ployers' Liability Assur. Corp. Wash. 225, 65 Pac. 284; Spiking v. (Miss.), 60 So. 213. Consolidated R. &c. Co., 33 Utah 313, >» Delta Elec. Light &c. Co. v. Em- 93 Pac. 838. 963 STREET RAILWAYS. § 85O plaintiff in his petition complained of, and that defendant's agent in charge of the car knew, or by the exercise of ordi- nary care should have known, of the existence of said path- way, and of the use thereof by persons going to or coming from the spring aforesaid, and unless the jury further believe from the evidence that the defendant's agents failed to exercise or- dinary care to have the car under reasonable control approaching said pathway, or failed to give reasonable and timely warning of its approach to said pathway by signal, and that by reason of such failure upon their part, or upon the part of either of them, the plaintiff sustained the injuries in his petition alleged, the law is for the defendant, and the jury should so find.^^ (2) The court instructs the jury that it was the duty of the defendant's motorman, in charge of the car to keep a lookout ahead for persons or vehicles upon the street, and to run the car at such speed and to have it under such control as ordinary care for their safety demanded and to exercise ordinary care to avoid a collision with them; and, if the jury believe from the evidence that the motorman in charge of the car referred to in the evidence failed to keep a lookout ahead for persons or vehicles upon the street, or failed to run the car at such speed or to have it under such control as ordinary care for their safety demanded, or failed to exercise ordinary care to avoid a collision with the plaintiff, and by reason thereof the collision occurred, they should find for the plaintiff." §850. Violation of ordinances. — (1) The court instructs the jury that the ordinance of the city of N. introduced in evi- dence is a regulation intended for the protection of travelers, and any violation of it, if proven, is competent evidence of neg- ligence in this suit, to be considered along with all other evidence in the case in determining whether the defendant was guilty of negligence as charged in the declaration which caused the plain- tiff's injury as therein alleged.^^ "^ Louisville R. Co. v. Hofgesand, ™ Norfolk &c. Trac. Co. v. Forrest, 31 Ky, L. 976, 104 S. W. 361. 109 Va. 658, 64 S. E. 1034. ""Louisville R. Co. v. Gaar (Ky.), 112 S. W. 1130. §851 INSTRUCTIONS FORMS. 964 (2) The court instructs the jury that if they believe from the evidence that, at the time of the accident by which the plaintiff's intestate, E. B. F., was injured as shown by the evidence, there was in force an ordinance of the city of N. which provided that: "It shall not be lawful for any person, or corporation, to operate or run any electric or trolley car or other vehicle propelled by electricity over or through any street crossing in the city of N., Va., without first reducing the rate of speed of said cars to not more than three miles per hour. And there shall be fixed to such cars a gong or other bell which shall be sounded continuously be- fore reaching such crossing, and beginning at a distance of fifty feet from such crossing" — then the said E. B. F., in approach- ing and crossing the defendant's track, had the right to assume that the servants of the defendant in charge of its car which was then approaching would obey the requirements of said ordinance in the running and operating said car. And if the jury believe from the evidence that, under all the circumstances by which said F. was surrounded, it would have been reasonably apparent to an ordinarily prudent person that he could cross the track without danger of a collision, he was not guilty of negligence in attempt- ing to do so.^* §851. Speed of cars. — (1) The court instructs the jury that, if they find that the car, when approaching the point where the trolley pole was set, was running at the rate claimed by the plaintitfif, it will be for them to determine whether its speed was or was not excessive; that they are the judges of what was the proper speed under all the attending circumstances ; that it is for them also to decide whether the actual speed maintained was ma- terial in its bearing on the proof of negligence ; and that the plain- tiff is bound to establish by a fair preponderance of evidence that the defendant was negligent substantially as alleged in the com- plaint."= (2) The court instructs the jury that if you find from the evi- dence that on or about the day of , the defendant, by its servants and employes, was running a car operated by elec- '■* Norfolk &c. Trac. Co. v. Forrest, '" Garfield v. Hartford &c. R. Co., 109 Va. 658, 64 S. E. 1034. 80 Conn. 260, 67 Atl. 890. 965 STREET RAILWAYS. § 852 tricity along S. street west approaching T. avenue west, in the city of C. R., at a high and unreasonable rate of speed, and you further find that by reason of running said car at a high and un- reasonable rate of speed said car collided at or near the intersec- tion of the street and avenue aforesaid with the vehicle in which the plaintiff was then riding, with such force and violence as to cause the plaintifJ to sustain personal injury, then your verdict should be for the plaintiff, unless you find that the plaintiff, by his failure to exercise ordinary care and prudence directly con- tributed to such injury.^" (3) The court instructs the jury that, if they believe and find from the evidence that the agents, servants, and employes in charge of the electric car in question were carelessly and negli- gently running the same at an excessive and dangerous rate of speed, and that on account thereof the said car ran upon, against, and over the body of H. A. N., the child of the plaintiffs, inflict- ing injuries upon him which caused his death, then your verdict must be for the plaintiffs, unless you further find from the evi- dence that the deceased, H. A. N., was himself guilty of con- tributory negligence or that the plaintiffs were guilty of con- tributory negligence as defined by the other instructions.^' § 852. Duty of motorman to keep lookout. — ( 1 ) The court instructs the jury that unless the jury believe from the evidence that the motorman in charge of the car failed to keep a lookout ahead for persons or vehicles upon the street, or failed to run the car at such speed or to have the car under such control as ordi- nary care for their safety demanded, or failed to exercise ordi- nary care to avoid a collision with plaintiff, and that by reason thereof plaintiff was injured, the jury should find for the de- fendant.^' (2) The court mstructs the jury that the plaintiff on the oc- casion in question was lawfully upon the street and had the right to use any part of it ; that the defendant was entitled to the use of its track for the free passage of its cars, but it was the duty '"Stanley v. Cedar Rapids &c. R. "* Louisville R. Co. v. Gaar (Ky.), Co., 119 Iowa 526, 93 N. W. 489. 112 S. W. 1130. "Nipper v. Metropolitan St. R. Co., 145 Mo. App. 224, 129 S. W. 439. § 852 INSTRUCTIONS FORMS. 966 of those in charge of the car in question to keep a lookout for per- sons and vehicles upon or near the track, and to exercise ordinary care to discover them and use such means as were at hand to avoid injuring them after their presence would be discovered; that it was the duty of the plaintiff to exercise ordinary care for his own safety.^* (3) The court instructs the jury that it was the duty of the motorman in charge of defendant's car being operated north on F. street near M. at the time plaintiff claims he was injured to keep a sharp lookout for persons alighting from the south-bound car which he expected to cross the street immediately behind same, and to have the north-bound car under such control as that it might be stopped at a moment's notice, and to give timely no- tice or warning of the approach of said car to said place by ring- ing of bell or gong, and if the jury believe from the evidence that the plaintiff alighted from south-bound car at F. and M. streets on the day of , 19 — , and went behind said car for the purpose of crossing the east track on which there was then being operated a car going north, was exercising ordinary care for his own safety, and further believe from the evidence that the mo- torman in charge of said north-bound car failed to keep a sharp lookout at said time and place, or failed to have said car under such control as that it might be stopped at a moment's notice, or failed to give timely warning of the approach of said car to said place by ringing the bell or gong, and further believe from the evidence that, by reason of the failure of the motorman in charge of said north-bound car to observe any one or more of these duties the plaintiff was struck by said north-bound car, the law is for the plaintiff, and you should so find.^" (4) The court instructs the jury that it was the duty of the motorman of the defendant's car which ran over and killed plain- tiff's decedent, J. G., at the time mentioned in the petition, to have his car under reasonable control and to keep a lookout for the presence of vehicles and to exercise ordinary care in so run- ning and operating his car as to prevent injury to persons using "■ South Covington &c. St. R. Co. v. "" Creamer v. Louisville R. Co., 142 Eichler (Ky), 108 S. W. 329. Ky. 340, 134 S. W. 193. n67 STREET RAILWAYS. §852 the Street; and if you believe from the evidence that the said motorman failed to exercise these duties or any of them, and, by reason of such failure, J. G. was run over and killed, the law in the case is for the plaintiff, and you should so find.^^ (5) The court instructs the jury that it was the duty of the de- fendant's motorman, in charge of the car mentioned in evidence, to exercise reasonable care to keep a vigilant watchout ahead for persons and vehicles upon or approaching the track upon which the car in question was running. If therefore you believe from the evidence that M. L. K. was, at the time and place in question, in a position of imminent peril of being struck by the car mentioned in evidence, by reason of the fact that the buggy in which he was seated was upon or approaching the track upon which said car was running, and that the motorman saw him in such position of danger, if any, or by the exercise of reasonable care would have so seen him, in time to slacken the speed of said car or to stop the same, by the exercise of reasonable care, and thus avoid striking and injuring him, but negligently and carelessly failed to do so; and if you further believe and find from the evidence that by reason of the foregoing careless and negligent acts of said motorman, if you find them to have been careless and negligent, the buggy in which plaintiff's husband was riding was struck, and plaintiff's husband was thrown out of the same and under said car and killed — then your verdict must be for the plaintiff, even though you believe and find from the evidence that deceased negligently placed himself in dangerous proximity to the street car mentioned in evidence.'^ (6) The court instructs the jury that at the time when and the place where O. L. S. was struck by the car and dragged and killed, the law imposed upon the motorman, while running said motor car, the duty to keep a vigilant watch for all persons on foot, and especially children, either on the track or moving to- ward it, and, on the first appearance of danger to such child, to stop the car within the shortest time and space practicable, con- sistent with the safety of passengers. And if the jury find from "Goldstein v. Louisville R. Co. ''Kinlcn v. Metropolitan St. R. (Ky.), 115 S. W. 194. Co., 216 Mo. 145, 115 S. W. 523. § 853 INSTRUCTIONS FORMS. 968 the evidence that the motorman operating said car failed to per- foi^m such duty, then such failure was negligence on the part of the Company; and, if the jury believe from the evidence that in consequence of such negligence above specified the death of said child was caused, your finding should be for the plaintiffs, unless you find from the evidence that plaintiffs, or one of them, or said child, was guilty of negligence which directly contributed to the death of said child ; and the burden of proving contributory negligence on the part of said child or plaintiffs rests on defend- ant, and, unless defendant has proven such contributory negli- gence by a preponderance of evidence, you can not find for the defendant on that ground.^* § 853. Duty of motorman to signal, — ( 1 ) The court in- structs the jury that negligence can not be predicated on the fail- ure to sound the gong or bell, so as to make the street railway company liable where the person injured by the car had in fact knowledge of its approach.^* (2) The court instructs the jury that it was the duty of the defendant's gripman to sound his gong or bell when approaching L. avenue, so as to give notice to persons desiring to cross said street of the approach of the train of cars ; and if you find from the evidence that said gripman failed to sound his gong or bell, or give any other warning, when approaching said avenue, and that, but for his failure to so sound his gong or bell or give such warning, the accident complained of would not have happened, your verdict should be for the plaintiffs, unless you also find from the evidence that M. S., at the time she was killed by defendant's cars, was not using that degree of care in going upon defendant's track which, in the ordinary experience of mankind, was to be expected of a girl of her age and capacity under the circumstances shown in the evidence.®^ " Spencer v. St. Louis Trans. Co., Mo. 645, 63 S. W. 834. See also Hart 222 Mo. 310, 121 S. W. 108. v. Cedar Rapids &c. R. Co., 109 Iowa "Delta Elec. Light &c. Co. v. Em- 631, 80 N. W. 662; Hogan v. Citi- ployers' Liability Assur. Corp. zens' R. Co., ISO Mo. 36, 51 S. W. (Miss.), 60 So. 213. 473. "Schmidt v. St. Louis R. Co., 163 969 • STREET RAILWAYS. § 854 § 854. Right of motorman to assume that traveler will leave track. — (1) The court instructs the jury that, although you believe from the evidence that the wagon with which the street car collided was driven in front of the car for some dis- tance near the railroad track, but in a place of safety, these facts would not, under the law, make it the duty of the motorman to stop his car, and if you believe said motorman rang his gong on seeing said wagon near said track, as aforesaid, so as to warn persons on said track on said wagon that the car was approach- ing, he, the motorman, had a right to anticipate that the wagon would be kept out of danger and give him the right of way, and under the circumstances he would not be called upon to stop the car or check the same until he saw the driver was ignorant of the approach of the car and that a collision would likely occur.*® (2) The court instructs the jury that, where an automobile is moving on a street at a safe distance from a street car, the person in charge of a street car is justified in operating the car on the presumption that the automobile will be kept at a safe distance from the track; and a street railway company can not be held liable for a collision caused by an automobile being driven into or against the street car.'^ (3) The court instructs the jury that, even though you may believe and find from the evidence that the motorman in charge of the car saw the plaintiff traveling northward on M. street, and upon or near the railway track, yet, under the law, he had the right to assume, if he gave warning of the approach of the car, that plaintiff would keep off the track, and allow the car to pass him, and not undertake to go upon or across the track in front of said car in such a manner as to expose himself to a collision, or, if he went upon the track, that he would get across or off of said track and out of danger of a collision with said car before it would reach him, and said motorman was not required to stop said car, nor was he required to check or slacken the speed of the car until there was actual danger of a collision.'^ "Hot Springs St. R. Co. v. Hil- ployers' Liability Assur. Corp., dreth, 72 Ark. 572, 82 S. W. 245. (Miss.), 60 So. 213. "Delta Elec. Light &c. Co. v. Em- "Recktenwald v. Metropolitan St. R. Co. (Mo. App.), 91 S. W. SS7.^ § 855 INSTRUCTIONS FORMS. 97O (4) The court instructs thp jury that when a motorman sees a man ahead of him alongside of the track, or approaching the track upon which his car is travehng, and this man is apparently able to take care of himself, there is nothing about the appearance of the man which indicates any inability to care for himself, the motorman has a right to assume that this man will act as an ordinary, careful, prudent man would act under such circum- stances, and it is not necessary for him to stop his car until he sees that this man is in a position of apparent danger; then it is necessary for him to stop his car for the purpose of avoiding a collision. ^^ (5) The court instructs the jury that if you find that the mo- torman saw the automobile upon the track, and there was noth- ing to obstruct the view of the occupants of the automobile of the approaching car, such motorman had a right to assume that the automobile would be turned off of the track and out of danger in time to avoid a collision, and the motorman had a right to in- dulge in such assumption until the danger of a collision became imminent.*" § 855. Right of motorman to assume that vehicle will not be driven in front of his car. — The court instructs the jury that, if under all the circumstances the motorman was justified in presuming, as a reasonably careful motorman, that this vehicle was going to continue to be driven in the direction in which it was going, and not turn across the street, then it was not neces- saiy for him to take any unusual precautions to stop his car until it became apparent to him that he was about to cross the track of the company, and, when that became apparent to him, then it was his duty to exercise every care within his power to avoid a collision." § 856. Care to be exercised after seeing person in perilous position. — (1) The court instructs the jury that it is a sound doctrine that, when one who is operating a street car or inter- "Duteau v. Seattle Elec. Co., 45 "Peterson v. Seattle Elec. Co., 71 Wash. 418, 88 Pac. 755. Wash. 349, 128 Pac. 650. "Pantages v. Seattle Elec. Co., SS Wash. 453, 104 Pac. 629. 971 STREET RAILWAYS. § 856 urban car sees another in danger or peril from which such other is unable to extricate himself by the exercise of reasonable care and prudence, it is the highest duty of such person so operating said car to so act as not to increase the peril or danger, and, if he does act thereafter in a manner so as to increase the peril or danger with full knowledge of the facts, it is negligence and the company may be made to respond in damages for injury caused by such negligence.*^ (2) The court instructs the jury that if you believe from the evidence that the motorman in charge of this B. street car per- formed his duty as set forth and defined to you in a previous instruction, and if you further believe from the evidence that the plaintiff's decedent, J. G., came upon the track in front of the B. street car so suddenly or so close to the same that the motorman in charge thereof could not, by the exercise of ordinary care on his part, slacken the speed thereof or stop the car in time to pre- vent the same from colliding with the deceased, the law is for the defendant and you should so find.*'' (3) The court instructs the jury that if they believe from all the evidence, at the time and place mentioned therein, while plain- tiff was upon the street mentioned, the motorman and employes of defendant in charge of the car in question knew, or by the exercise of ordinary care could have known, of his presence upon the track, or so near thereto that said car would strike, if he was upon said track or near thereto as aforesaid, in time to stop said car and avoid injuring him, if he was injured, and while plain- tiff was in the exercise of ordinary care, if he did use such care, that said car was caused by said employes of defendant to be run against and to strike him, and plaintiff thereby received the injuries complained of, you will find for plaintiff, and fix the damages, if any, in accordance with instruction , otherwise you will find for the defendant.** (4) The court instructs the jury that if the defendant, its agents or servants or employes in charge of the car in question, "Mortimer v. Daub (Ind. App.), "South Covington &c. St. R. Co. 98 N. E. 845. v. Eichler (Ky.), 108 S. W. 329. " Goldstein v. Louisville R. Co, (Ky.). lis S. W. 194. § 856 INSTR^^CTIONS FORMS. 973 discovered the peril of the plaintiff, if any, or by the exercise of ordinary care could have discovered plaintiff's peril, if any, and the jury further believe that the defendant, its agents, servants or employes then and there in charge of said car used ordinary care in preventing the injuries in question, if any, after discovering plaintiff's peril, if any, then the law is for the defendant and the jury should so find.*'' (5) The court instructs the jury that if they believe from the evidence that the plaintiff went out in the street so close to the car that, if the car was running at a reasonable rate of speed as defined in No. , the motorman could not by the exercise of ordinary care have perceived his danger, and stopped the car so as to avoid injury to him, the jury should find for the defend- ant." (6) The court instructs the jury, for the plaintiff, that if you believe from the evidence that the damage to the automobile of E. L. S., for which this suit is brought, was caused by a failure on the part of the motorman in charge of the car of defendant to do all that he could, with safety to his car, himself, and pas- sengers, after seeing the danger of said automobile, or by the exercise of reasonable care he could have seen said danger, to pre- vent the street car from striking the automobile, then you will find for the plaintiff, and assess its damages at what the evidence shows it to be entitled to, not to exceed the amount sued for.*' (7) The court instructs the jury that, in this case, if this motorman, and it is claimed that such is the fact, was on the front part of the car, had charge of the motions of the car, and saw with an unobstructed view the plaintiff with his team upon this highway, saw that the plaintiff was cramped in a narrow place in the highway, and forced near the track by reason of an automobile, which was upon the other side of the highway oppo- site the plaintiff, if the motorman saw that, and saw that by con- tinuing with the motion of his car he would be likely to strike the wagon in which plaintiff was riding, and thus injuring him, " Frankfort &c. Trac. Co. v. Hu- " Delta Elec. Light &c. Co. v. Em- lette, 32 Ky. L. 732, 106 S. W. 1193. ployers' Liability Assur. Corp. *" Louisville R. Co. v. Gaar (Ky.), (Miss.), 60 So. 213. 112 S. W. 1130. 573 STREET RAILWAYS. § 857 he had no right to go in there and speculate upon his chances of possibly getting through without injury to the plaintiff.** (8) The court instructs the jury as to one of the elements of negligence claimed by the defendant, that if you should find from the evidence that the motorman of the defendant company could, in the exercise of ordinary care on his part, such care as an ordi- narily prudent person, situated as he was, would exercise, could and should have seen D. on the track before him in time to have stopped his car and avoid the accident, and by not seeing, in the exercise of ordinary care, what he could and should have seen, caused the accident, then your verdict would be for the plaintiff, provided D. himself was not guilty of neghgence on his part.*" (9) The court instructs the jury that in this case, if you shall find from all the evidence before you that the motorman, under the circumstances shown, had reason to apprehend from what he saw that the horse was likely to become unmanageable and. run away, or otherwise injure himself or the persons in the carriage, it was his duty to use his best efforts, making use of all the means at his command, and all the methods and appliances upon his car, to stop the car as quickly as could thereby be done, if so doing would be likely, or tend to avoid danger of injury or danger to any persons or property in peril. If you shall so find that the motorman neglected to do anything so reasonably required of him, under the circumstances as above stated, if they existed, and such failure or negligence upon his part was the proximate cause of the death of F., it will be your duty to return your verdict for the plaintiff in this action."" § 857. Duty toward children. — (1) The court instructs the jury that if you find from the evidence that the motorman in charge of defendant's car saw the plaintiff's intestate in time to have avoided the accident by reversing the power, and did not do so, and that by reason thereof the accident occurred, this consti- tuted negligence, and your verdict must be for the plaintiff. Un- less you find from the evidence that the child stopped when he "Champlin v. Pawcatuck Val. St. "Fisher v. Waupaca Elec. Light R. Co., 33 R, I. 572, 82 Atl. 481. &c. Co., 141 Wis. SIS, 124 N. W. "Cincinnati Trac. Co. v. Doren- lOOS. kemper, 32 Ohio Cir. Ct. 239. § 857 INSTRUCTIONS FORMS. 974 saw the car approaching, and that the motorman In the exercise of due care and prudence under all the circumstances of the case had good reason to believe, and did believe, that the child did not intend to cross the track until after the car had passed, if you find from the evidence that the motorman vv^as justified in believ- ing that the child did not intend to cross the track, and that the car was not running at more than eight miles an hour, and the motorman when he saw that the child did intend to cross the track reversed the car and did all in his power to avert the acci- dent, then the defendant would not be liable in this case, unless you find from the evidence that the defendant was guilty of other acts of negligence which caused the accident. If you find from the evidence that this accident was unavoidable and not due to any fault or negligence on the part of the defendant, then the verdict should be for the defendant."*^ (2) The court instructs the jury that it is the duty of the motorman to keep a reasonable lookout for children or others that may be not only on, but in a dangerous proximity to, the tracks, in the operation of its cars on the streets ; and if you find from all the evidence that the motorman in this case, in the exercise of reasonable diligence and care, should have seen the child or chil- dren sufficiently near the track to have caused a man of reason- able prudence to believe that the child might be injured, then it was the duty of such motorman to have so operated said car as to prevent the injury, or such threatened injury, if the same could have been prevented by the exercise of reasonable care."^ (3) The court instructs the jury that the law requires that the defendant's servants should be watchful to see that the way is clear in the direction in which the train is going, and that where they have reason to anticipate the sudden and unexpected ap- pearance of children upon or approaching the track, they should so manage the grip and brakes of the cars as to be able to stop the cars quickly and readily, should occasion require. If, there- fore, tmder all the circumstances detailed in the evidence, you find that there was reason to anticipate the sudden and unexpected "Love V. Detroit &c. R. Co., 170 Minn. 280, 91 N. W. 1106. See also, Mich. 1, 13S N. W. 963. Hanley v. Ft. Dodge Light &c, Co... "Gray v. St. Paul City R. Co., 87 133 Iowa 326, 107 N. W. 593, 975 STREET RAILWAYS. § 857 appearance of children upon or approaching the track at the inter- section of L. avenue with B., and you further find that defend- ant's servants in charge of its train of cars were not so managing its grip and brakes so as to be able to stop said train quickly, should occasion require, and you further find that the death of the plaintiffs' daughter was caused by the failure of defendant's servants to so manage said grips and brakes, then your verdict must be for the plaintiffs, unless you should also find from the evidence that M. S., at the time she was killed by defendant's cars, was not using that degree of care in going upon defendant's tracks which, in the ordinary experience of mankind, was to be expected of a girl of her age and capacity under the circumstances shown in the evidence. ^^ (4) The court instructs the jury that if they believe and find from the evidence that plaintiffs are the parents of F. B. H., deceased; that said deceased at the time of his death was a minor, unmarried, and of the age of seven years; and that de- fendant on and prior to about the day of , , was engaged in the business of transporting passengers, for hire, from one point to another within the city of St. L., by street railway, and for that purpose used and operated its railway, and a certain gripcar and trailer composing the train ; and if the jurors further believe and find from the evidence that M. street at said time was an open public street of the city of St. L. at the place herein- after mentioned; and if jurors further believe and find from the evidence that on the day of , , that said child was in said M. street, at a point at or near the crossing on the east side of T. street, and whilst on said street at said place he was run over by defendant's said gripcar, and thereby injured, and died from the effect thereof ; and if the jurors further believe and find from the evidence that defendant's gripman in charge of said gripcar just before and at the time of so running over and injur- ing said child was not keeping a vigilant watch for all persons on foot, especially children, either on its said track or moving toward it, or that said gripman did not stop said gripcar in the shortest time and space possible, under the circumstances, upon the first "Schmidt V. St. Louis R. Co., 163 Mo. 645, 63 S. W. 834. § 857 INSTRUCTIONS FORMS. 976 appearance of danger to said child; and if the jurors further be- Heve and find from the evidence that said gripman, by the keep- ing of such vigilant watch, would have seen said child moving toward the track, or upon the track and in danger, and could, in the exercise of ordinary care, by so stopping said gripcar in the shortest time and space possible under the circumstances, have averted the injury from said child; and if the jurors further be- lieve and find from the evidence that plaintiffs exercised ordinary care in the custody of said child, in keeping it from being exposed to said injury, according to their condition in life, and that said child exercised the degree of care which is reasonably to be ex- pected from a child of his years and experience under the circum- stances, — then your verdict should be for the plaintiffs, and, if you find for the plaintiffs, you will assess their damages in the sum of five thousand dollars. The jurors are instructed that if the defendant was engaged in the business of transporting pas- sengers, for hire, from one point to another within the city of St. L., on or about the day of , , then, by Ordi- nance No. , read in evidence, it became the duty of the grip- man in charge of the gripcar to keep a vigilant watch for persons on foot, especially for children, either on its track or moving toward it, and, on the first appearance of danger to such person or child, it was the duty of the gripman to stop the car in his charge in the shortest time and space possible under the circum- stances. The court instructs the jury that the degree or measure of care or caution which said infant child, F. B. H., was required to exercise, was that which is ordinarily exercised, and which is reasonably to be expected from a child of his years and expe- rience, under the circumstances he was in, as shown by the evi- dence, and, before the jury can find him guilty of contributory negligence, they must find that he failed to exercise such care or caution as might reasonably be expected of a child of his years and experience under the circumstances ; and the burden of prov- ing contributory negligence is on the defendant to establish by a preponderance of the evidence."* (5) The court instructs the jury that the plaintiffs in this case " Hogan V. Citizens' R. Co., ISO Mo. 36, 51 S. W. 473. i^'J'J STREET RAILWAYS. § §57 make no claim that the car which ran over the child was not stopped within the shortest time and space possible after any of the defendant's employes became aware of the presence of dan- ger, and that plaintiffs do not base any charge of negligence upon the failure of the gripman in charge of the car to stop the car in the shortest time and space possible after he first became aware of any danger to the child, M. S. ; and you are therefore in- structed that that portion of the ordinance of the city of St. L. read in evidence which provides that on the first appearance of danger to persons, either on the track or moving toward it, the car should be stopped in the shortest time and space possible, has no application to the facts of this case, and the jury are in- structed to disregard that portion of said ordinance, and that portion of said ordinance is withdrawn from your consideration at the request of plaintiffs.**' (6) The court instructs the jury that in considering this case they should not indulge in any mere suppositions or imaginings as to what may or may not have been done or occurred at the time of the occurrence, but must decide the case upon the evidence of witnesses and the instruction of the court. And the court further instructs the jury that they are the sole judges of the credibihty of the witnesses and the weight to be given to their testimony, and in weighing the testimony the jury should take into consideration, not only what they have testified to, but also their manner of testifying, and their bias, if any is shown, toward or against plaintiffs or defendant, their ability at the time to clearly see what occurred, and now to clearly recall and relate the facts ; and, if the jury believe from the evidence that any witness has know- ingly sworn falsely to any material fact, then the jury may disbe- lieve the whole or any part of such witness' testimony. The court instructs the jury that, though there was a crowd of people at the northeast corner of T. street, the gripman was not required, under the allegations of the petition and the law, to slow down his train to one, two, or three, or four, or five, or six miles an hour, or to stop it, or try to stop it, before the rush of the people toward the track; and the jury must not impute any negligence ■" Schmidt V. St. Louis R. Co, 163 Mo. 64S, 53 S. W. 834. 62 — Branson's Inst. § 857 INSTRUCTIONS FORMS. 978 to the gripman because he did not stop, or try to stop, or was not running very slowly, before the rush of the crowd occurred, or the first appearance of danger. The court instructs the jury that there is no evidence in this case tending to prove the cars were being run at a greater rate of speed than eight and one-half miles an hour, and therefore the jury should not consider the allega- tions of negligence that the train was being run at a greater rate of speed than eight and one-half miles an hour. And the court further instructs you that if you believe from the evidence that as the train was approaching T. street the gripman rang the bell, and it could be heard at the northeast corner of T. and M. streets, then the court instructs you that he performed his whole duty under the allegations of negligence in that regard, and under the law, and he was not required to be ringing it as he was cross- ing T. street and approaching the east crossing, and you must find that allegation of negligence concerning the not ringing of the bell in favor of the defendant. And the court further in- structs you that all the evidence in this case shows that the child, F. B. H., was on the pavement, in the crowd, and if the jury be- lieve from the evidence that the gripman and conductor were keeping a vigilant watch for all persons on foot, especially chil- dren, as mentioned in these instructions, as the train was crossing T. street and approaching the east crossing, and that as soon as the crowd surged or rushed toward the track the gripman stopped the train in the shortest time and space possible under the circum- stances, then your verdict must be for the defendant, notwith- standing the gripman did not notice the boy as he ran from the pavement and on to the track, or thereafter. The court further instructs the jury that an accident may happen and a person be injured or killed therein, that is not caused by the negligence of any person connected therewith ; and if the jury believe from the evidence that the death of the child, F. B. H., was the result of such mere accident or misadventure, then your verdict must be for the defendant. The court instructs the jury that while the child, F. B. H., was required to use only such care and caution as could be reasonably expected of a child of his years and ex- perience, nevertheless he was required to use such care and cau- tion; and if the jury believe from the evidence that he did not do 979 STREET RAILWAYS. § 857 SO, and was himself negligent in running right in front of and close to the car, and his being run upon by the car was the result of his negligence in not exercising such care, then the jury will find their verdict for the defendant. The court instructs the jury that, under the pleadings and evidence, no want of care or negli- gence can be imputed to the defendant because it did not have other or different appliances about its gripcar than it had, and therefore the jury must not consider that matter at all."' (7) The court instructs the jury that, although they may be- lieve from the evidence that the motorman called to the plaintiff and his companions to get off the car, yet, to entitle the plain- tiff to recover in this action, the jury must believe that said call of the motorman was of such a threatening character as to jus- tify the belief in the mind of the plaintiff, taking into considera- tion his age, that the motorman intended to do him bodily harm, or eject him from the said car while it was in motion, and the plaintiff, through fear of such threat, jumped from the car, and was injured, and that the jury must further believe that it was within the scope and duty of said motorman to order the plaintiff to get off of said car.^' (8) The court instructs the jury that if the plaintiff, H. R. W., at the time of the injury, was a child of tender age of seven years, and was riding upon defendant's car in the city of , whilst the same was in motion, and that the defendant's serv- ants in charge of said car knew of his presence on the car and ordered him to get off, it was their duty to have reduced the speed of said car, before ordering the plaintiff to leave the same, to such a rate of speed as the plaintiff might depart from the car with safety, notwithstanding the jury may believe that the plain- tiff was at the time a trespasser upon the defendant's car. But in order to find for the plaintiff the jury must believe that the order of the conductor was given in such a manner as to frighten or intimidate the plaintiff to such an extent as to cause him to "'Hogan V. Citizens' R. Co., ISO "Washington &c. Elec. R. Co. v. Mo. 36, SI S. W. 473. Quayle, 95 Va. 741, 30 S. W. 391. § 858 INSTRUCTIONS FORMS. 980 jump from the car while it was in motion ; taking into considera- tion the age and capacity of the plaintiff.'** § 858. Injuries to animals. — The court instructs the jury- that, inasmuch as cattle are not allowed to run at large in the city of A., the defendant company was not bound to anticipate that cattle would be then on the track, but it had a right to pre- sume that the track was clear of cattle. Although you may be- lieve from the evidence that there was contributory negligence on the part of the plaintiff in the fact that the cow was at large, still if you further believe from the evidence that by the exercise of due care on the part of the defendant, its agents and servants, the injury to the cow would have been avoided, notwithstanding the negligence of the- plaintiff, then the plaintiff has a right to recover."^ § 859. Care toward frightened horses. — The court in- structs the jury that while it is true that those in charge of a street car being operated upon a street car track on and through a public street are not required to immediately stop the car upon seeing a horse or team at the side of the street manifesting fright, nevertheless it is the duty of the person operating such car to be constantly on the alert, and, if he discovers a person so situated that injury must follow unless the car is stopped, it is such op- erator's duty to make all reasonable efforts to stop said car and, if he fails to do so, the company will be liable for any and all damages that may result."" § 860. Collision with runaway teams. — The court instructs the jury that the defendant is not required or compelled to con- struct a street railway track or tracks at the point or place of the accident, or at any other point or place, so as to provide for or against runaway horses, rigs or teams; that is, it is required to construct and maintain its road in such condition only as is rea- sonably safe for ordinarily reasonable and prudent persons using "'Richmond Trac. Co. v. Wilkin- °° Thompson v. Albuquerque Trac. son, 101 Va. 394, 43 S. E. 622. See Co, IS N. Mex, 407, 110 Pac. 552. also, Washington &c. Elec. R. Co. v. "Mortimer v. Daub (Ind. App.), Quayle, 95 Va. 741, 30 S. E. 391. 98 N. E. 845. 981 STREET RAILWAYS. § 862 the Streets at the ordinary and usual rate of speed and driving a reasonably safe and gentle horse, allowing for the disposition of an ordinarily safe horse and the ordinary incidents of caprice or fright, driven by an ordinarily careful and prudent person." § 861. Care at railroad crossing. — (1) The court instructs the jury that it was the duty of the motorman on approaching each of the separate tracks of the railway company to look and listen before proceeding with his street car upon said track, and if you find his failure to perform this duty directly contributed to cause the collision between the street car and the locomotive and the injury to the plaintiff, then the defendant, the traction company, is liable in this case, and it will be your duty to find a verdict for the plaintiff.*^ (2) The court instructs the jury that you must further deter- mine whether the servants of the company used ordinary care in approaching said crossing from all the evidence, including the rule of the company which orders that when passing standing cars the gong must be rung and the cars must be under complete control."" § 862. Tracks above street grade. — The court instructs the jury that, the plaintiff says that, at the point of this corner where the plaintiff crossed over, the rails of the defendant com- pany had either been put or left by them two or three inches The plaintiff was driving a horse lowing instruction, which also was and buggy when the animal became given : "It was the duty of the de- frightened and ran away, the ve- fendant to construct and maintain hide striking the rails of defend- its tracks in such a way as to be ant's street-car lines. Plaintiff was safe for travel thereon by means of thrown out of the buggy and sus- a buggy or other vehicle drawn by tained injuries. It was contended the ordinary horse having the ordi- that the accident was caused by the nary disposition, allowing for the or- defendant's negligence in not main- dinary incidents of caprice or fright taining its rails flush with the and driven by an ordinarily careful streets, in accordance with the pro- and prudent person." Gray v. Wash- visions of the city ordinance. The ington Power Co., 30 Wash. 66S, 71 instruction was held to be correct Pac. 206. in plainly pointing out the reason- ""Cincinnati &c. Trac. Co. v. Hol- able degree of safety required by brock, 32 Ohio Cir. Ct. 724. the law. It was held also to make "Cincinnati Trac. Co. v. Johnson, more definite and certain the fol- 32 Ohio Cir. Ct. 594. § 862 INSTRUCTIONS FORMS. 982 above the surface of the street, and that that height was a dan- gerous height, and made the crossing by a careful man danger- ous, and, in fact, did cause a careful man a severe injury as he crossed. And the defendant answers that, first, by saying it is not true, and the rails weren't anywhere near so high, that they were not so high as to make it at all dangerous for a careful man to cross the street; and they say further, — and that is a point made to me as judge, — ^they say further that no matter whether their rails were above or below the street, that if they put their rails upon the grade in the first place, that they are protected, and that the fault in the difference in the elevation of the rails and the street is the fault of the city of L. I will only trouble you with the fact, gentlemen. Now I am going to give you this rule : The railroad company, under the evidence in this case, wasn't bound, as a whole, to keep that street in repair. They were not bound to keep it in repair as between the rails even. They hadn't as- sumed the duty of keeping the street or any part of it, in repair. That duty was left upon the city of L., so far as the repairs of the street were concerned. But I say further to you that the rail- road company, coming into that street, rightfully putting down tracks to accommodate their cars, was bound to so construct and maintain its tracks that the travel upon that street, with or with- out a team, could cross those tracks safely, with the exercise of reasonable, ordinary care. They were not bound to so construct them or maintain them that a careless man could go across in safety, — an unthinking man, a negligent man, could cross in safety. They are not bound, as to the general public, to guard against every man's thoughtlessness. But I repeat that they are so bound, and it was their duty, to so construct and maintain their tracks that a careful man, in the exercise of ordinary care and watchfulness, could go across those rails with safety. Now, that may include sinking the rails to the grade of the street nearly or quite, or it may include the matter of approaches; so that they must so arrange it that a man can get over without hit- ting against the rails to any serious inconvenience. That is, putting it generally, they were bound to keep their tracks in such 983 STREET RAILWAYS. § 864 condition that a careful man, with the exercise of ordinary care, could safely cross." §863. Snow and ice on tracks. — (1) The court instructs the jury that the defendant railway company was entitled, under its charter, and the orders made by the board of supervisors of E. C. county, to the use of the bed of M. street for the purposes of a street railway; and, if its tracks were covered with snow, it had the right to remove it therefrom, provided that in doing so it exercised ordinary care and prudence. And where the snow might reasonably have been deposited so as not to obstruct the way of pedestrians passing from one side of the street to the other at street crossings, the depositing of snow at such point so as to create an obstruction is a negligent act.®° (2) The court instructs the jury that though they may believe from the evidence that the plaintiff, M. E. B., saw the heap of snow alleged to have been piled or thrown up by the defendant company, and knew that it was of a dangerous character, her at- tempt to cross the same is not contributory negligence, provided that, under all the facts and circumstances of this case, in making such attempt she was exercising such due and reasonable care as persons of ordinary prudence would exercise under the same or similar circumstances.*" § 864. Wanton injuries. — (1) The court instructs the jury that, wilful injury exists where there is a purpose on the part of the party complained of to inflict the injury. Wanton injury does not necessarily include any design or purpose to injure any one; but if the person in charge of the car, which is being operated and run along a public street, knows that to run the car without stopping is liable to injure a person in front of the car, and if he is conscious of his conduct at the time, continues to run the car with a reckless indifference to consequences, without making proper " Bangs V. Lewiston &c. R. Co., Bradford, 100 Va. 231, 40 S. E. 900. 89 Maine 194, 36 Atl. 73. See also. Contributory negligence, see Chicago Gray v. Washington Water Power Union Trac. Co. v. Chugren, 209 111. Co., 30 Wash. 665, 71 Pac. 206. 429, 70 N. E. S73; Lexington St. R. "Newport News &c. R. Co. v. Co. v. Strader, 28 Ky. L. 157, 89 S. Bradford, 100 Va. 231, 40 S. E. 900. W. 158. ™ Newport News &c. R. Co. v. . § 865 INSTRUCTIONS FORMS. 984 efforts to stop it, or without using the means at hand to stop it, and prevent the coUision, that would constitute wantonness, if the act or omission to act was the proximate cause of the injury. You see, in wilful injury there must be design or purpose; where^ as, to constitute wanton injury, there need not be a design to in- jure, but a reckless indifference to consequences, knowing at the time that the doing of certain acts, or failure to do certain acts, would result in personal injury or death, and he consciously does the act, or consciously fails to act, and such act, or failure to act, results in injury or death, that would constitute wantonness, if that act or failure to act was the proximate cause of the injury." (2) The court instructs the jury that it is not necessary to recover by plaintiff under either the first or the second count of the complaint that the motorman should have had any actual de- sire to injure N. or any one else."* (3) The court instructs the jury that even if N. was guilty of negligence which proximately helped to cause his injury, then plaintiff would be entitled to a verdict if the jury are reasonably satisfied from the evidence that the second count is true ; and, to prove the second count, it is not necessary to prove that the mo- torman had any actual intent to injure N. or any one else.*' (4) The court instructs the jury that the mere failure on the part of the motorman to keep a lookout ahead does not constitute wantonness.'"' § 865. Presumption of negligence. — The court instructs the jury that in case of a collision between a street car and an automobile there is no presumption that it was caused by the neg- ligence of either the driver of the automobile or the person op- erating the street car, but the question of negligence is a matter of proof." § 866. Burden of proof of negligence. — The court instructs the jury that before the plaintiff can recover it must prove by a "Birmingham R. &c. Power Co. °° Birmingham R. &c. Power Co. V. Drennen, 17S Ala. 338, S7 So. 876. v. Norton, 7 Ala. App. 571, 61 So. ™ Birmingham R. &c. Power Co. 459. V. Norton, 7 Ala. App. 571, 61 So. "Jaffe v. Birmingham R. &c. 459. Power Co.., 166 Ala. 572, 52 So. 311. ""Deha Elec. Light &c. Co. v. Em- 985 STREET RAILWAYS. § 86/ preponderance of the evidence that the automobile in question was injured by the neghgence of the defendant's motorman in charge of the car.'^ §867. Contributory negligence. — (1) The court instructs the jury that if a pedestrian is neghgent in crossing or attempting to cross a street railway track on a public highway, and such neg- ligence proximately contributes even in the slightest degree to an injury received by him by being struck by a car on such track, he can not recover any damages on account of the mere failure of the motorman to keep a proper lookout for him, nor on ac- count of a mere failure to sound the gong of the car.'' (2) The court instructs the jury that if they believe from the evidence that the plaintiff's injuries resulted in consequence of a wrongful act or omission on the part of the motorman in charge of defendant's car, but only through or by means of some negli- gence on the part of the negro chauffeur in charge of the auto in which plaintiff was riding, from which last negligence the in- jury followed as a direct and immediate consequence, then plain- tiff's injuries should be referred to the negligence of the negro chauffeur, and should not be traced to the negligence of defend- ant's motorman.'* (3) The court instructs the jury that as the plaintiff was about to cross the tracks of the defendant in F. street the law placed upon the plaintiff, and upon the employes of the defendant in charge of the car in question, the same legal duty, viz., the duty of exercising ordinary care to avoid a collision. If, there- fore, you find, from the evidence, that a want of ordinary care on the part of the defendant's employes in charge of said car and a want of ordinary care of the plaintiff combined to bring about the accident, and that a want of ordinary care on the part of both of the said employes and of the plaintiff contributed proximately to such accident, then, in such case, you should find the defendant not guilty." ployers' Liability Assur. Corp. Power Co., 166 Ala. 572, 52 So. 311. (Miss.), 60 So. 213. "Birmingham R. &c. Power Co. "Delta Elec. Light &c. Co. v. Em- v. Ely (Ala.), 62 So. 816. ployers' Liability Assur. Corp. "Flanagan v. Chicago City R. Co., (Miss.), 60 So. 213. 243 111. 456, 90 N. E. 688. "Jaffe V. Birmingham R. &c. § 86/ INSTRUCTIONS FORMS. 986 (4) The court instructs the jury that "ordinary care", as men- tioned in these instructions, is the degree of care which an ordi- narily prudent person situated as the deceased was, as shown by the evidence, before and at the time of the injury, would usually exercise for his own safety/® (5) The court instructs the jury that a street railway track is a place of known danger and if you find from the evidence in this case that, on the occasion complained of, B. H. S. (name of person killed) was traveling upon or approaching in such close proximity to said track that he might be struck by a car if he did so, he was required by law to exercise for his own safety a degree of care proportionate to the danger involved, and if he failed to exercise such degree of care to be expected of a man of ordinary prudence, and by reason of such failure, if any, he approximately contributed to his injury and death, then his ad- ministrator can not recover in this action and in that event your verdict should be for the defendant/' (6) The court instructs the jury that, in determining whether the plaintiff was guilty of any negligence which in any way con- tributed to her injury, you will consider the definitions of "ordi- nary care", "negligence" and "contributory negligence", else- where given you in these instructions, and you will consider, as shown by the evidence : The place where the plaintiff was in- jured and the surroundings thereabout; where the plaintiff came from, where she was going, and the manner thereof; the number of street railway tracks on said street at said place; whether plaintiff, before crossing said tracks from the south to the north side thereof, and before attempting to recross said tracks, looked to the westward; the distance a car approaching from the west, on the south track, could have been seen from the place where plaintiff was, at and immediately before the time she crossed or attempted to cross said tracks ; whether plaintiff did or did not see the car approaching on said south track at said time ; what the plaintiff thereafter did, and the length of time which there- after elapsed before her injury; the general custom and usage, "■ Chicago City R. Co. v. O'Don- Schwinge, 46 Ind. App. 525, 93 N. E. nell, 208 111. 267, 70 N. E. 294. 35. "Indiana Union Trac. Co. v. 987 STREET RAILWAYS. § 867 if any, at the time of the accident in question, of motormen on moving cars, in relation to sounding the bell or gong, or slack- ening the speed of such cars, on passing a standing car loading or unloading passengers, or a car just starting from a stop, at street intersections ; what the plaintiff knew, if anything, in relation to such custom and usage, if any, and whether she relied thereon; what plaintiff was doing ; whether the plaintiff was using and ex- ercising the senses with which she was endowed by nature, as re- quired in the exercise of ordinary care ; what the plaintiff knew, or in the exercise of ordinary care should have known ; what the plaintiff did, or in the exercise of ordinary care should have done ; together with any other facts or circumstances shown in this trial showing, or tending to show, whether the plaintiff was guilty of any negligence contributing to her injury.'* (7) The court instructs the jury that if you find from the evi- dence that the plaintiff's injuries, if any, were directly and prox- imately caused by the negligence, if any, of the defendant, as explained to you in the second and third instructions, then it is your duty to ascertain and determine whether the plaintiff was himself, at and previous to the time of receiving his injuries, if any, exercising such ordinary care as a man of reasonable cau- tion and prudence would have exercised under like circumstances ; and, if you find that his failure so to do directly contributed to his injuries, if any, then your verdict should be for the defendant ; and upon the issue of the exercise of ordinary care by the plaintiff the burden of proof is upon him to establish the same to your sati isfaction by a fair preponderance of the evidence.'® (8) The court instructs the jury that if they believe from all the evidence that upon the occasion in question the plaintiff, L. A. E., failed to exercise the degree of care for his own safety which ordinarily prudent persons ordinarily exercise under the same or similar circumstances, and that the failure on his part to exercise such care contributed to all his injuries, and that but for such lack of care on his part he would not have been injured, they will find for the defendant.*" "Dow V. Des Moines City R. Co., ""South Covington &c. St. R. Co. 148 Iowa 429, 126 N. W. 918. v. Eichler (Ky.), 108 S. W. 329. '"Stanley v. Cedar Rapids &c. R. Co., 119 Iowa 526, 93 N. W. 489. § 86/ INSTRUCTIOXS FORMS. 988 (9) The court instructs the jury that, even though they may believe from the evidence that the defendant was guihy of negh- gence, yet if you further beheve that the person in charge of the automobile was guilty of contributory negligence, which was the proximate cause of the injury, then you will find for the de- fendant." (10) The court instructs the jury that upon the issue as to whether the deceased was guilty of negligence contributing to her death, such as will prevent the plaintiffs from recovering in this case, the court instructs you that the law requires all persons situated as deceased, M. S., was, when and before the accident happened, to exercise ordinary care and caution to avoid injury to themselves, and that the absence of such care and caution con- stitutes negligence. In determining, however, whether the de- ceased, M. S., was exercising such care and caution, the jury should take into consideration her age and capacity, since the law requires of a child nine years old only such care and caution as might reasonably be expected of one of her age and capacity under similar circumstances. If, therefore, you find that the de- ceased, M. S., in going upon defendant's track, was using that degree of care which, in the ordinary experience of mankind, was to bfe expected of one of her age and capacity under similar cir- cumstances, then she was not guilty of negligence, within the meaning of the law and these instructions. The court further in- structs you that the burden of proving that the deceased, M. S., was' guilty of negligence contributing to her death, is upon the de- fendant.^^ (11 ) The court instructs the jury that although they may find from the evidence that, at the time of the accident to the plaintiff, defendant's train was running at a greater rate of speed than miles an hour, that would not justify a recovery in this case in favor of the plaintiff, unless the jury further find that the plain- tiff, taking into consideration his age and experience and under- standing, by reason of the threatening language of the motorman, had reasonable ground for believing that the motorman intended ''Delta Elec. Light &c. Co. v. Em- '"Schmidt v. St. Louis R. Co., 163 ployers' Liability Assur. Corp. Mo. 645, 63 S; W. 834. (Miss.), 60 So. 213. 989 STREET RAILWAYS. § 869 to inflict physical violence upon the plaintiff, or to eject him from the car, or so terrorize the plaintiff as to compel him against his will to jump from the car.*^ § 868. Contributory negligence as proximate cause. — ^The court instructs the jury that, the mere fact, if it be a fact, that N. was guilty of negligence in going on or being near the track, in close proximity to an approaching car, would not necessarily, as a matter of law, be the proximate cause of his injury, but the question as to what was the cause of the injury is for the jury.** §869. Imputed negligence of parents of children. — (1) The court instructs the jury that even if you believe, from the evidence, that the plaintiff's mother was guilty of negligence in permitting the plaintiff to go upon the street, or that his brother was guilty of negligence in not taking proper care of him while upon the street, still such negligence, if any, upon their part, can not be charged against the plaintiff, and it is not a defense to this suit.*' (2) The court instructs the jury that if you find from the evidence that S. took the same degree of care of the child on the occasion in question as a reasonably prudent person ordinarily would under the same or similar circumstances, then she was not guilty of such contributory negligence as would defeat this ac- tion ; and even if the jury should believe that she did not exercise reasonable care, in that the child escaped from her grasp and ran across the railroad track as shown in the evidence, yet this would not defeat plaintiff's recovery, if you believe that the motorman after seeing the child either on the track or moving toward it, and on the first appearance of danger to such child, failed to stop the car within the shortest time and space practicable consistent . "Washington &c. Elec. R. Co. v. v. Metropolitan St. R. Co., 80 App. Quayle, 95 Va. 741, 30 S. W. 391. Div. 233, 80 N. Y. S. 577. Contributory negligence of infants, "Birmingham R. &c. Power Co. see Stewart v. Southern Bell Tel. v. Norton, 7 Ala. App. 571, 61 So. &c. Co., 124 Ga. 224, 52 S. E. 331; 459. Chambers v. Milner Coal &c. Co., °° Ferryman v. Chicago City R. Co., 143 Ala. 255, 39 So. 170; McDonald 242 111. 269, 89 N. E. 980. § 870 INSTRUCTIONS FORMS. 99O with the safety of the passengers on board the car, and that such failure by said motorman occasioned the death of said child.*" §870. Doctrine of discovered peril. — (1) The court in- structs the jury that even though they should believe from the evidence that C. H. N. did go on the track, or so near the car as that the motorman could not stop in time to avoid knocking him down, yet, if the jury are reasonably satisfied from the evidence that, after the motorman became aware of his peril, the motor- man, by the diligent and careful use of all the means at com- mand, could have avoided the injury to N., then the act of N. in going or being on the track in front of the cars would not be the proximate cause of the injury, and the plaintiff would be en- titled to a verdict under the first count, if the jury are reasonably satisfied from the evidence that the first count is true.^^ (2) The court instructs the jury that even if D. pulled his horse on the track, and was guilty of contributory negligence in that regard, yet if the motorman saw the peril in time to avoid the danger by the exercise of due care, and negligently failed after discovering the peril to do what he could in the exercise of due care in the management or control of the car, and that such negligent failure, if there was such, proximately caused the death, then the previous negligence, if any, of D. in getting into danger, would be no defense to such subsequent negligence of the motor- man, even if the motorman was not guilty of any wantonness, nor of any intentional wrong. ^* (3) The court instructs the jury that if you find from the evidence that, at the time above mentioned, said E. C. exercised such care and caution for his own safety as a reasonably prudent child of his age and capacity would have exercised under the same or similar circumstances, and that defendant's motorman and servant in charge of and operating said car either saw, or by the exercise of ordinary care on his part could have seen, said E. C. moving toward and upon said track in a perilous position in front of said car, and, if you so find, in time to check the '"Spencer v. St. Louis Trans. Co., v. Norton, 7 Ala. App. 571, 61 So. 222 Mo. 310, 121 S. W. 108. 459. "Birmingham R. &c. Power Co. ^Birmingham R. &c. Power Co. V. Drennen, 175 Ala. 338, 57 So, 876. 991 STREET RAILWAYS. § 87O speed of said car with safety to its passengers and to have avoided running against and injuring said child ; if you find such were the facts, and that said servant and employes of defendant neg- lected and failed to do so, and that such failure, if any, directly and proximately caused the death of said child, then your ver- dict will be for the plaintiff.'" (4) The court instructs the jury that although you may find and believe from the evidence that the defendant's motorman on its car mentioned in evidence sounded the gong, rang the bell, or blew the whistle attached to the car, or did all these things and used any or all of the ordinary danger signals in order to attract the attention of the boy, and although you may further find from the evidence in this case that the boy was guilty of negligence in going on the track of defendant at the time and place he was killed, yet if you further believe from the evidence that defend- ant's motorman in charge of said car saw, or by the exercise of ordinary care could have seen, the child on defendant's tracks, or approaching thereto with the evident intention of entering thereon or crossing it, in time to have stopped his car or so slackened its speed as to have prevented the injury of said child, and failed to do so, and on account thereof the child was struck and killed by said car, then you should find the issues for plaintiffs. "^ (5) The court instructs the jury that if you believe and find from the evidence that H. A. N., the child of the plaintiffs, be- came in a position of imminent peril of being struck by the elec- tric car mentioned in evidence while upon, in close proximity to, or approaching the track upon which said car was running, and that the motorman of the defendant operating said car saw him in such position of danger, or by the exercise of reasonable care" would have seen him, in time to have slackened the speed of said car or stopped the same and avoided striking and injuring the child, but negligently and carelessly failed to do so, thereby striking him and inflicting injuries upon him from which he died, then your verdict must be for the plaintiffs.'^ ™ Childress v. Southwest Missouri R. Co., 141 Mo. App. 667, 126 S. W. R. Co., 141 Mo. App. 667, 126 S. W. 169. 169. "Nipper v. Metropolitan St. R. "Childress v. Southwest Missouri Co., 145 Mo. App. 224, 129 S. W. 439. § 870 INSTRUCTIONS FORMS. 992 (6) The court instructs the jury that the defendant would be liable if it could have prevented the accident by ordinary care after it knew or ought to have known that plaintiff was likely to be in a position of danger from which he could not escape by the exercise of like care, even if the inabihty to protect himself was the result of his own prior neghgence.^^ (7) The court instructs the jury that there is another rule of law which may be applicable in some phases of this case, depend- ing somewhat on the view you may take upon the facts, and that is this : That, even if the plaintiff by some negligent act of his did put himself into a place of danger by his own negligence, still if, after he was in a place of danger through his negligence, he was guilty of no further negligence, but did all that he could do to save himself, all that he might be reasonably expected to do to avert the accident, and the motorman, if such be the case, saw the plaintiff, and appreciated the peril in which he was placed in time to avert the accident, it was the duty of the motorman to avert such an accident, and his failure to do so would become the prox- imate cause of the injury, and the defendant would be liable in the case, notwithstanding the original negligence on the part of the plaintiff. The rule of law as applicable to such a case I will give you in the following form: Even if the plaintiff was guilty of negligence in driving too close to the track, still if, after having done so, he was guilty of no further negligence and did all he could reasonably be expected to do to avert the accident, it was the duty of the driver of the car, if he saw and appreciated the peril in which the plaintiff was placed in time to slacken the speed of the car, or stop it, and avert the accident, to do so, and neg- lect on his part to do so under those circumstances becomes the proximate cause of the injury and renders the company liable. The party who last has a clear opportunity to avoid the accident, notwithstanding the neglect of his opponent, is considered solely responsible.*^ (8) The court instructs the jury that if they believe from the evidence that after the servants of the defendant in charge of its car knew, or in the exercise of ordinary care ought to have known, ^ Morse v. Manchester St. R. Co., "" Champlin v. Pawcatuck Val. St. 76N. H. 80, 79 Atl. 493. R. Co, 33 R. I 572, 82 Atl. 481. 993 STREET RAILWAYS. § 87 1 of the danger to which the plaintiff's intestate was exposed in crossing the track in front of the car, they could have avoided the accident by the exercise of ordinary care, but failed to do so, and that the plaintiff was injured thereby, as alleged in the dec- laration, they must find for the plaintiff, whether the plaintiff's intestate was guilty of contributory negligence in attempting to cross the track at that time or not.°* § 871. Duty of traveler to look and listen. — (1) The court instructs the jury that one who walks upon a street railway track must first look to see whether a car is approaching on the track, and if his view of the track in one direction is obstructed by a wagon, he must look from a point where, by looking, he can see the track in such direction.'" (2) The court instructs the jury that one who walks upon a street railway track must first look to see whether a car is ap- proaching on the track.°° (3) The court instructs the jury that if they believe from the evidence in this case that plaintiff stopped on the east side of the east track to allow an ice wagon to pass him along the street, and that while there he looked toward T. avenue, and could not see the car because his view of the track in that direction was ob- structed by the ice wagon and could not hear the car because of the noise made by the ice wagon, and after said wagon passed him he then proceeded onto or dangerously near the west track without looking any more to see whether a car was coming from the direction of T. avenue, he was guilty of negligence as a matter of law in proceeding onto or dangerously near said track without looking again to see whether the said car was approaching.*' (4) The court instructs the jury that the law declares that the precise thing that every man is bound to do before stepping upon a railroad (and that applies to street railroads, as well as other railroads) is that which every prudent man would do un- der like circumstances ; and if you believe that every prudent man "Norfolk &c. Trac. Co. v. For- "Birmingham R. &c. Power Co. rest, 109 Va. 658, 64 S. E. 1034. v. Fox, 174 Ala. 657, 56 So. 1013. "Jaffe V. Birmingham R. &c. "Jaffa v. Birmingham R, &c. Power Co., 166 Ala. 572, 52 So. 311. Power Co., 166 Ala. 572, 52 So. 311. 63 — Branson's Inst. § 871 INSTRUCTIONS FORM'S. 994 would look and listen, so must every one else, or take the con- sequences, so far as the consequences may have been avoided by that means.®* (5) The court instructs the jury that if they believe, from the evidence, that ordinary care on the part of W. for his own safety required him, before driving to or upon the track parallel with the track upon which he had been driving, at the time and place in question and under all the circumstances in evidence, to look and ascertain whether or not a car was approaching along the north- bound track, and not to drive upon said track without so looking; and if the jury believe, from the evidence, that W., if he had looked, could, by the exercise of ordinary care, have ascertained whether or not a car was approaching along the said north-bound track; and if the jury further believe from the evidence that W. did not so look and ascertain whether or not the car was so ap- proaching, and that he was injured in consequence and because of his failure, if he did so fail to look and ascertain — then the court instructs the jury to find the defendant not guilty." (6) The court instructs the jury that under the issues and the uncontradicted evidence in this case, the plaintiff is responsible for the driving of the team hitched to the wagon in which he was riding at the time of the collision complained of, and in this case the plaintiff's conduct is to be measured as if he were the driver of said team himself. It is the duty of a traveler, upon approach- ing a street car crossing, to look and listen for approaching cars, and he must exercise in this respect such care as an ordinarily prudent person would exercise under like circumstances; and I charge you that it would be negligence on the part of a traveler to drive upon a street railway track in a crowded city when a car was approaching on said track at such a distance and at such a rate of speed that such car would be liable to collide with the vehicle in which said traveler was riding ; and in this connection I instruct you that in this case it is for you to determine from the evidence whether or not the plaintiff drove upon said track at the intersec- tion of I. and M. streets at a time when a reasonably prudent person could have seen that the car of the defendant, approaching "Farmers' Ginnery &c. Co. v. ™ Chicago City R. Co. v. O'Don- Thrasher, 140 Ga. 669, 79 S. E. 474. nell, 208 111. 267, 70 N. E. 294. 995 STREET RAILWAYS. § 87 1 from the south, would probably collide with the wagon in which the plaintiff was riding, and if you find from the evidence that such collision probably would have occurred, and that a person of ordinary prudence, situated as the plaintiff was in the exercise of ordinary care, could have seen that such collision would probably have occurred, then I instruct you that the plaintiff is guilty of contributory negligence in attempting to drive over defendant's track under such circumstances, and can not recover; but if you find from the evidence that at the time plaintiff drove upon said track he had ample time to cross over said track in safety before said car would reach the point of crossing, if it were to continue to travel at the same rate of speed at which it was traveling at the time he attempted to cross, and if you further find that while he was in the act of crossing said track in plain view of the car the defendant suddenly increased the rate of speed of said car, without warning, to such an extent that the plaintiff, in the exer- cise of ordinary care, could not cross over said track without being struck by said car, and that said increase of speed was made after the plaintiff had started to cross the tracks upon which said car was approaching, and that the collision was occasioned wholly by the increase of speed of said car, then the plaintiff is not chargeable with contributory negligence in attempting to cross said tracks under such circumstances.^ (7) The court instructs the jury that a street railway crossing is a place of danger, and every one who uses it is presumed to know such fact, and is required to use the senses with which he is invested by nature to avoid accident. While the plaintiff, in the absence of knowledge to the contrary, had a right to assume that the defendant would exercise ordinary care, the defendant also, in the absence of knowledge to the contrary, had a right to pre- sume that the plaintiff would exercise ordinary care.^ (8) The court instructs the jury that it was the duty of the plaintiff when he started across the tracks of the defendant at the place in the evidence referred to, to exercise ordinary care for his own safety, and if you believe from the evidence that at the time he failed to exercise ordinary care for his own safety, and 'Indianapolis St. R. Co. v. Coy- ''Doherty v. Des Moines City R. ner, 39 Ind. App. 510, 80 N E. 168. Co., 144 Iowa 26, 121 N. W. 690. § 872 INSTRUCTIONS FORMS. 996 by reason of such failure helped to cause or bring about the in- juries of which he complains, and that he would not have been injured but for his failure in this respect, if any there was, then the law is for the defendant, and you should so find, although you may believe from the evidence that the motorman was negligent as submitted to you in the instruction.^ (9) The court instructs the jury that it is the duty of a person before driving upon a street car track over which street cars are being operated to use ordinary care to ascertain the approach of cars and avoid injury therefrom, and if a person fails to exercise such care, and such failure, if any, on his part, either directly causes or directly contributes to his injury, then such person is himself guilty of negligence, as defined in these instructions.* (10) The court instructs the jury that it was the duty of plaintiff to look and listen for the approach of the car, before at- tempting to pass over the track, and if you believe from the evi- dence that he failed to look and listen, and that such failure was the direct and proximate cause of the accident, or directly con- tributed to it as its proximate cause, your verdict should be for the defendant. ° (11) The court instructs the jury that, even though they may believe from the evidence that a view of the track on which the defendant's engine was approaching the crossing was partially obstructed by cars left standing on the side-tracks, yet that fact did not lessen the caution required of the plaintiff in attempting to cross, but, on the contrary, imposed on him a higher degree of caution.* § 872. Recklessly driving on track in front of approaching car. — (1) The court instructs the jury that if they believe from the evidence that the negro chauffeur in charge of the auto- mobile in which plaintiff was riding was negligent in running the automobile down the hill at the time of the collision between it and defendant's street car, and that this negligence on his part " Creamer v. Louisville R. Co., 142 Tenn. 324, 67 S. W. 479. See also, Ky. 340, 134 S. W. 193. Murray v. St. Louis Trans. Co., 108 ^Welland v. Metropolitan St. R. Mo. App. 501, 83 S. W. 995. Co., 144 Mo. App. 205, 129 S. W. 441. " Atlantic &c. R. Co. v. Rieger, 95 "Nashville R. Co. v. Norman, 108 Va. 418, 28 S. E. 590. 997 STREET RAILWAYS. § 872 was the sole proximate cause of the collision and plaintiff's in- jury, then you should find a verdict for the defendant.' (2) The court instructs the jury that if they believe, from the evidence in the case, that while the defendant and its servants were (if they were) exercising ordinary care, the plaintiff, at the time and place of the injury, suddenly and unexpectedly, and without the knowledge of the defendant, drove his wagon across and upon defendant's track and thereby placed himself in a posi- tion of danger, then, in order to charge the defendant with a duty to avoid injuring him, the plaintiff must show, by a pre- ponderance of the evidence in the case, that the circumstances were of such character that the defendant's servant or servants had an opportunity to become conscious of the facts giving rise to such duty, and a reasonable opportunity in the exercise of or- dinary care and caution to perform such duty. And if the jury further believe, from the evidence, that the facts, as shown by the evidence, did not charge the defendant and its servants with a duty as thus defined, or if the jury believe, from the evidence, that the defendant and its servants did not have a reasonable opportunity, in the exercise of ordinary care, to perform such duty as thus defined, then they should find the defendant not guilty. And if the jury believe, from the evidence in the case, that the plaintiff suddenly and unexpectedly drove his wagon across and upon the track, in front of the car of the defendant which occasioned the injury, and that the servant or servants in charge of such car did all that could be done, in the exercise of ordinary care, to avoid injuring and damaging him, then the plaintiff can not recover in this case, and the jury should find the defendant not guilty.^ (3) The court instructs the jury that if they believe, from the evidence, under the instructions of the court, that the sole cause of the injury to the plaintiff was the negligent manner in which the horses and carriage in question were driven or managed, if you believe, from the evidence, that such horses and carriage 'Birmingham R. &c. Power Co. 'Chicago Union Trac. Co. v. V. Ely (Ala.), 62 So. 816. Browdy, 206 111. 615, 69 N. E. 570. § 872 INSTRUCTIONS FORMS. 998 were negligently driven or managed, then it is the duty of the jury to find the defendant not guilty.' (4) The court instructs the jury that if you find and believe from the evidence that plaintiff's horse and wagon were stand- ing Still in the street facing the car track, at a safe distance therefrom, and that the motorman on defendant's car saw the plaintiff's horse and wagon in such position, he had a right to presume that plaintiff would remain in a safe position if he was in such position, and that he would not drive or attempt to drive upon the defendant's car tracks so close in front of an ap- proaching car as to be in danger of being struck by such car, and if you find and believe from the evidence that plaintiff did so drive upon said car tracks and that after it was apparent that he was about to so drive upon said tracks in front of an approaching car, the motorman thereof saw, or by the exercise of ordinary care could have seen, that plaintiff was apparently about to drive upon said tracks, he then used ordinary care to avoid colliding with plaintiff's wagon, your verdict will be for the defendant.^" (5) The court instructs the jury that if you find from the evi- dence that, while the agents and servants in charge of the car were exercising ordinary care and precaution, the plaintiff drove upon the track in front of the moving car when the car was close to it that the motorman, by the exercise of reasonable care and diligence, could not stop the car in time to prevent the collision, the defendants would not be liable, and your verdict should be in their favor.^^ (6) The court instructs the jury that, even though you may believe from the evidence that the motorman failed to ring his bell as he approached the crossing, and that he was running at an excessive rate of speed, and that he failed to exercise ordinary care under the circumstances to avoid the accident, after he saw, or by the exercise of ordinary care could have seen, that there was danger of a collision with the wagon, you still can not find a verdict for the plaintiff, if you believe from the evidence that F. attempted to drive across the track in front of the approaching "Chicago Union Trac. Co. v. "Nashville R. Co. v. Norman, 108 Leach, 215 111. 184, 74 N. E. 119. Tenn. 324, 67 S. W. 479. "Welland v. Metropolitan St. R. Co., 144 Mo. App. 205, 129 S. W. 441. 999 STREET RAILWAYS. § 873 car, after he knew, or by the exercise of ordinary care could have known, that the car would not stop in time to avoid a colli- sion with the wagon." (7) The court instructs the jury that if you believe from the evidence that the car of the defendant was coming south on B. street approaching P. avenue, and that the plaintiff's intestate was driving westwardly on P. avenue, approaching B. street just before the accident, and that the plaintiff's intestate as he ap- proached and entered B. street saw, or by the exercise of ordi- nary care could have seen, the car of the defendant approaching, and could have avoided this accident, either by stopping his team or turning to the right or left, but elected to take the chance of crossing the track on which the car was approaching at a time when he saw, or by the exercise of ordinary care could have seen, that there was danger of a collision in so doing, your verdict must be for the defendant.^^ § 873. Damages recoverable. — (1) The court instructs the jury that if they find for plaintiff under instruction , they will award him such a sum in damages as will reasonably and fairly compensate him for his mental and physical suffering, if any of either, the reasonable expense, if any, in the matter of medicines and physician's bills incurred by him, and for the per- manent impairment, if any, of his ability to earn money that may have directly resulted to plaintiff from his injuries, if they were caused by the negligence of defendant's servants, but the dam- ages altogether should not exceed $ .^* (2) The court instructs the jury that if you find for the plain- tiff, you should allow him such sum, not to exceed the amount claimed by him in his petition, as will reasonably compensate him for the pain and suffering, if any, or loss of time, if any, or both, suffered, or that will be suffered, by him because of his injuries, if any, by him sustained by reason of colliding with the car of the defendant at the intersection of T. avenue west and S. street west on or about the day of , ." "Norfolk &c. Trac. Co. v. For- "South Covington &c. St. R. Co. rest, 109 Va. 658, 64 S. E. 1034. v. Eichler (Ky.), 108 S. W. 329. "Norfolk &c. Trac. Co. v. For- "Stanley v. Cedar Rapids &c. R. rest, 109 Va. 658, 64 S. E. 1034. Co., 119 Iowa 526, 93 N. W. 489. CHAPTER LXXXVII. TELEGRAPH AND TELEPHONE COMPANIES. Section Section 874. Rights in highways. 881. Taking message over telephone. 875. Injuries to persons on highways. 882. Erroneous transmission of mes- 876. Objects in highway which tend sage. to frighten horses. 883. Breakdown of wires as excuse 877. Injuries to property from de- for delay in transmission. fective wiring or insulation. 884. Negligent delivery of messages. 878. Duty to accept messages without 885. Sufficiency of sendee's address. discrimination. 886. Damages. 879. Right to fix office hours for re- 887. Damages — Exemplary damages. ceipt and transmission of mes- 888. Damages — Mental anguish, sages. 880. General duty of care in trans- mission or delivery of mes- sages. § 874. Rights in highways. — The court instructs the jury that if they find that the defendant in this case, the Com- pany, was at the time of the injury complained of, and previous thereto, a telegraph company duly incorporated and organized under the laws of the state of N. Y., and that it had accepted the provisions of the act of congress of July 24, 1866, and that, under the provisions of that act and the acts of congress amenda- tory thereof, it had erected its poles and wires along the con- tinuation of C. street, just outside of the corporate limits of the village of N. B., and that the land upon which it erected its poles and strung its wires was the property of J. R. S., and that he gave permission for the erection of the said line, and has never revoked such permission, then I charge you that the defendant lawfully erected its lines upon said continuation of C. street, and that it had a right to work and operate said lines of poles and wires upon said continuation of C. street. I charge you further that, if this is the land of S., whether he gave the company per- 1000 ' lOOI TELEGRAPHS AND TELEPHONES. § 875 mission to erect a telegraph line on his land or not, if it is erected there and in operation, no third party can punish the telegraph line upon the ground that it is on land of S. without his consent. S. is the party to make that objection, and not the third party.^ §875, Injuries to persons on highways. — (1) The court instructs the jury that a telegraph company is bound to use ordi- nary care and reasonable diligence to place and keep its telegraph line and wires in a safe condition, where it extends over or along thje public, traveled road. If you believe from the evidence that the defendant failed to perform such duty and that, by reason of its negligence or the negligence of its servants or agents in that regard, its line of wire was suffered to hang over the road so low at the point where it crosses the road, as has been testified to by the witnesses, as to obstruct the public travel upon such road and to be in such a dangerous condition that by reason thereof the plaintiff, while exercising reasonable care on his part, re- ceived the injury complained of, then the defendant is liable and you may find a verdict for the plaintiff. If you should find from the evidence that the defendant has not been guilty of any neg- ligence, as has been explained to you, it will be your duty to find a verdict in favor of the defendant. But if you should find from the evidence that the defendant was guilty of negligence and that by reason of such negligence the plaintiff was injured, then you must consider the question whether or not the plaintiff was guilty of any negligence which contributed to the injury which he re- ceived.^ 'Miles V. Postal Tel. Cable Co., gence, reasonable care or reason- 5S S. Car. 403, 33 S. E. 493. able diligence, it ought to have 'Complaint was made of this in- asked the court to do so. Not hav- struction in that the court failed to ing asked any such instruction, the define negligence, reasonable care appellate court can not reasonably or reasonable diligence, which terms be expected to reverse a judgment are employed in the charge. No for the failure of the trial court to instruction to cover such omission, define terms used in instructions however, was oflfered. "No objection which are too clear to be misunder- is made to the instruction of the stood by the ordinary mind." West- court upon the subject of contribu- ern Union Tel. Co. v. Engler, 75 tory negligence. If the defendant Fed. 102, 21 C. C. A. 246. wished the court to define negli- § 875 INSTRUCTIONS FORMS. 1002 (2) The court instructs the jury that, it is a fact that the cutting down of the tree, the contact of the tree with the wires, precipitated the falling of the pole, and that was therefore a proximate cause of the injury to the plaintiff; it was the efficient cause. But where an injury is suffered and a combination of cir- cumstances has brought about that injury, that occurrence, so that there is 'more than one efficient cause, and if one of those efficient causes was a wrongful act, then the injured person has a right to claim compensation from that wrongdoer, even though his wrongful act, or his negligence in combination with other acts without which the injury would not have happened, pro- duced the result. It will be for the jury to consider in this case whether the falling of the tree would not have caused the pole to fall and injure the plaintiff if the pole had been of sound timber, and if there had been no negligence on the part of the defendant in the case with respect to suffering that pole in a defective condi- tion to support its wires there by the highway. If the pole had been sound and safe, as it should have been, and the defendant guilty of no negligence in the matter, and still it would have fallen by reason of the falling of the tree upon the wires, there is no liability on the part of the defendant. If, however, you find that there was negligence on the part of the defendant with re- spect to that pole, and that the injury would not have happened by reason of the cutting down of the tree — if the defendant had been free from the negligence charged in this complaint — then you will be justified in finding that the negligence of the defend- ant was a concurring cause which would render the defendant liable for consequential injuries to the plaintiff. The jury should take into account all that has been proved by the evidence with respect to the size and weight of the pole and its condition of soundness or unsoundness, the support which it had by being connected in a line with the wires, by the wires, any defect which the evidence shows by reason of the absence of a guy wire, the length of time that had elapsed after the pole became in that con- dition, so as to judge of whether there was carelessness or negli- gence on the part of the defendant ; and you are to judge from a consideration of the facts proven whether there was negligence; whether there was that degree of disregard of the conditions of 1003 TELEGRAPHS AND TELEPHONES. § 876 this property which constitutes negligence and the omission of duty on the part of the defendant under all the circumstances. If there is no negligence, there is no liability, and the plaintiff can not recover. If there was negligence, it is still a question of whether that negligence was an efficient cause of the injury; if so, the defendant is liable, notwithstanding that there was an- other cause.^ (3) The court instructs the jury that it is the duty of L. City to keep its streets in a reasonably safe condition, so that per- sons can pass along and through the same safely by the exercise of ordinary care and prudence day or night; that the defendant, while it has a right, through the permission of the city, to use its streets for poles and wires, it must use the same care and pru- dence with reference to the same and safety of the public that the city itself is required to use ; and, if you find that the defendant maintained an unprotected guy wire in one of the streets of the city, and connected from a pole placed in the street, and from the said pole to the ground in the street at a point about fifteen feet from the base of said pole, at night, and without placing guards around or lights upon or near the same, or other con- trivances intended to warn travelers of danger, and that by rea- son thereof travel along or across the street was rendered dan- gerous, it is for you to say whether the same constituted negli- gence.* § 876. Objects in highway which tend to frighten horses. — The court instructs the jury that, if you further believe from the evidence, that said wooden wire spool was by its appearance calculated to frighten horses and cause them to become unman- ageable; and if you further believe from the evidence that said wooden wire spool was permitted by the employes of the defend- ant company to remain in such place an unusual and unnecessary length of time for the performance of said work; and if you further believe from the evidence that in permitting said wire spool to so remain in such place for such length of time, if you believe it was so permitted to remain, defendant was guilty of 'Pacific Tel. &c. Co. v. Parmenter, * Davidson v. Utah Independent 170 Fed. 140. Tel. Co., 34 Utah 249, 97 Pac. 124. § 877 INSTRUCTIONS FORMS. I(X)4 negligence, as that term has been hereinbefore defined to you, and that such negligence, if any, was the direct and proximate cause of D.'s injuries, if any — ^then you will find for the plaintiff and assess his damages as hereinafter directed, unless you should find for defendant under other instructions given you.° § 877. Injuries to property from defective wiring or insu- lation. — (1) The court instructs the jury that, was the fire due to that cause [because the defendant carelessly and negli- gently allowed one of its wires' attached to the telegraph pole in front of plaintiff's store to become detached from a defective in- sulator, and to swag and fall upon the frame in front of the plaintiff's store, and thereby convey a current of electricity to the plaintiff's store, which caused it to ignite and burn down] , or was the fire due to an act of God? And, in determining this issue, you will determine whether the storm caused the wire to break by reason of the fact that the store was on fire and heated the same, and caused it to break and become defective, or whether the wire, by reason of the defects complained of, caused the store to ignite.® (2) The court instructs the jury that if a telegraph line is so constructed as not to be properly insulated to carry off a current of electricity, and by reason of the defect, and the close prox- imity to the property of another, induced the agency of any force, by the act of God, to destroy the property (in this case, say, through the careless management or careless erection or maintenance of this line), then the party would be responsible, — would be indirectly conveying the act of God to this particular property under these circumstances/ § 878. Duty to accept messages without discrimination. — The court instructs the jury that defendant's business is one which is affected with a public use, and the company is a public service corporation, with certain well-defined rights and duties, among the latter of which is to give to each and all of its patrons, ' Southwestern Te.. &c. Co. v. Doo- ° Miles v. Postal Tel. Cable Co., 55 little (Tex. Civ. App.), 138 S. W. S. Car. 403, 33 S. E. 493. 415. ' Miles V. Postal Tel. Cable Co., 55 S. Car. 403, 33 S. E. 493. 1005 TELEGRAPHS AND TELEPHONES. § 88o and to those who desire to become patrons, courteous and prompt service in the transmission of messages ; and it is the duty of the defendant to be sure that it is strictly within its rights before it undertakes to deprive one of the public of the rights of its service.* § 879. Right to fix office hours for receipt and transmis- sion of messages. — (1) The court instructs the jury that, not- withstanding the defendant company may have adopted office hours, if it undertook to transmit and deliver a telegram, the jury had a right to look to that circumstance, the nature of the tele- gi-am, and everything else in the case, in saying whether or not the defendant was negligent in failing to deliver the telegram sooner than it did deliver it.® (2) The court instructs the jury that while it is true that a telegraph company has the legal right to establish reasonable hours for the transmission and delivery of messages, and if such hours are reasonable, which is a question of fact for the jury, it is under no legal obligation to deliver a message outside of such hours, yet there can be a waiver of such regulations on the part of the company ; from here on out I will charge you in my own language, as to waiver, and that is this : Waiver consists in that action of a person who possessed of a known right or privilege, created by law or by contract or by other ways for his benefit, yet it is by him purposely ignored and set aside.^" § 880. General duty of care in transmission or delivery of messages. — (1) The court instructs the jury that practically this case coines down to this question : Was this such a mistake as these people contracted with each other should not be con- strued as a ground of damage, or was it a mistake arising from the gross negligence of the defendant's employes or some one of them? If it was a mere mistake, no matter how arising, there can be no recovery by the plaintiffs ; and there can be no such recov- ery unless you find that the mistake was caused by the gross neg- 'Carmichael v. Southern Bell Tel. 163 Ala. 18, SO So. 248, 23 L. R. A. &c. Co., 162 N. Car. 333, 78 S. E. (N. S.) 648. S07. " Harrison v. Western Union Tel. "Western Union Tel. Co. v. Hill, Co., 75 S. Car. 267, 55 S. E. 450. § 88o INSTRUCTIONS FORMS. IOO6 ligence of the defendant's employe. Now it is hard to define the difference between gross and ordinary or simple negligence. There are three kinds of negligence spoken of by text-writers, and, in fact, spoken of by the court. One is simple or slight negli- gence; another is called ordinary negligence; the third is called gross negligence. There is a difference between gross negligence and the lesser degrees of negligence. In this case, a recovery can be had only for the gross negligence; and this classification of negligence as gross and ordinary and slight only indicates that under special circumstances great care and caution are required, or only ordinary care, or only slight care. If the care demanded by the circumstances of this individual case was not exercised, the case is one of negligence under either head of this classifica- tion, and a legal liability is made out when the failure is shown. Gross negligence, as is said in one of the cases, is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term ordinary negligence; but, after all, it means the absence of the care that was neces- sary under the circumstances. So that in this case you are to determine whether or not this defendant, under all the circum- stances of the case as they have been laid before you, exercised the care which those circumstances required. You will take into consideration the amount of the order, the haste in which they had to transact their business, the fact that it was a day when there was a large rush of orders, and give the defendant credit for all that may be legitimately urged, not straining to find its negligence, but asking: Under all the circumstances of the case, did it, through its employes and representatives, act as prudently and as carefully as was reasonably to be expected un- der all the circumstances? If it did, the fact that there was a mistake does not make it liable, as I have explained to you. The mere mistake does not make it liable ; and, of course, the reason is obvious. It has been shown to you in the proof here, as claimed by the defendant, that it has done all that prudent men could to insure the safe, speedy, correct forwarding of these messages ; that its employes were of a high type of skill ; that its appliances were of the best kind ; and that in that regard it did all that it could. And the mere fact that a man may make a mistake 1007 TELEGRAPHS AND TELEPHONES. § 88l does not of itself make the company liable. They further claim that these mistakes occur, not only by the reason of the inatten- tion or want of care or distraction, perhaps, at the instant, of an employe, but they are often caused by extraneous causes — light- ning, rain, the contact of some foreign substance such as the limb of a tree — and that mistakes are caused by many causes, and that they do not contract nor are they obliged in law to hold their patrons harmless against mere mistakes. So that, in this case, you must first find, not only that this mistake was not caused by extraneous causes, but you must find that, if it was caused by the negligence of an employe it was that gross want of care and attention which implies a disregard of the duty imposed upon the employe and upon the company, and a disregard of the rights of those who are dealing with the company. Now plaintiffs claim, on the other hand, that this gross negligence is amply established by the manner of doing the business, by the fact that this is not the only mistake that occurred in this telegram, but that there were several others of minor importance, and of no importance in this case except as there may be circumstances, taken with all the other circumstances, which will aid you in de- termining the main question, whether or not in the sending of the dispatch there was gross negligence shown. These are all ques- tions for you, gentlemen, to consider.^^ (2) The court instructs the jury that it is the duty of a tele- graph company to be diligent in transmitting and delivering mes- sages which are received by it, and any failure of this duty on its part would be negligence, and if damage results from such negli- gence, either to the sender or the sendee of such message, it would be actionable negligence.^^ §881. Taking message over telephone. — (1) The court instructs the jury that if the operator in the telegraph office took the message over the phone, and in so doing made a mistake in the message, if you find that the mistake was made without negli- gence, but was such a mistake as would have been made by a man of ordinary care and prudence, then you must find for the "Weld V. Postal Tel. Cable Co., "Kivett v. Western Union Tel. 148 App. Div. S88, 133 N. Y. S. 228. Co., 1S6 N. Car. 296, 72 S. E. 388. § 882 INSTRUCTIONS FORMS. IOO8 defendant, for in the transmission and delivery of a telegraph message a telegraph company is only bound to exercise ordi- nary care and diligence." (2) The court instructs the jury that, if you find that the per- son in the defendant's office at V. who took the message over the phone made no mistake in taking the message over the phone, you must find for the defendant, or if you find that the agent of defendant did make a mistake, but, if it was not done carelessly or negligently, you must find for the defendant.** § 882. Erroneous transmission of message. — ^The court in- structs the jury that if you believe from the evidence that plain- tiff went out in the rain and exposed himself to the weather after reaching B., and procured a buggy and drove with his wife to the house of said L., and you furthef believe that such conduct or any other conduct on the part of plaintiff caused or con- tributed to cause his own or his wife's sickness and suffering, as alleged in his petition, and you further believe that such conduct on the part of plaintiff was a failure on his part to use ordinary care, as that term has been hereinbefore defined to you, you will find for defendant as to all damages claimed for injuries and suffering of either himself or wife, and all moneys expended for medicines for either himself or his wife, and for loss of time, although you may believe defendant was guilty of negligence in the transmission and delivery of said telegram.*^ § 883. Breakdown of wires as excuse for delay in trans- mission. — (1) The court instructs the jury that the appellant as a telegraph company was not an insurer of the prompt trans- mission and delivery of messages entrusted to its care, but was bound to use reasonable care and diligence tO' effect such trans- mission and delivery. If the wires connecting H. and W. were down and not in working order at the time the message was re- ceived at H., and continued in that condition until after the train for H. had left W., and if this condition of the v/ires was not "Leppard v. Western Union Tel. "Western Union Tel. Co. v. Co., 88 S. Car. 388, 70 S. E. 1004. Powell, 54 Tex. Civ. App. 466, 118 "Leppard v. Western Union Tel. S. W. 226. Co., 88 S. Car. 388, 70 S. E. 1004. 1009 TELEGRAPHS AND TELEPHONES. § 884 due to any negligence upon the part of the defendant, and by the use of reasonable care and diligence the defendant could not repair said wires and put them in condition for use in time to transmit and deliver the message before said train had left W. on the morning of , then the failure to transmit the message was not an act of negligence making defendant liable for damages therefor ; otherwise, it was/° (2) The court instructs the jury that the appellee must prove that at the time of receiving the message the appellant's operator did not notify the sender of the fact that the lines were not work- ing to W., and that there would be a delay in sending the mes- sage to plaintiff by reason thereof ; that there were other means of communication between H. and W. by which the message could have been sent, and that it would probably have been received by appellee in time for him to have taken passage on the train leaving W. on the morning of , and have reached the bed- side of his wife prior to her death; and that the sender could and would have used such other means of sending the message if he had been so notified by the operator .^^ § 884. Negligent delivery of messages.— (1) The court in- structs the jury that the defendant company was bound to use ordinary care to deliver the message to the person for whom it was intended.^^ (2) The court instructs the jury that if the defendant com- pany did not know or have reason to believe that the message delivered to its agent at G., I., for transmission was intended for C. M., its failure to deliver the same to C. M. is no evidence of negligence.^* (3) The court instructs the jury that if you believe from the evidence that the defendant company contracted and agreed with N. T. D. that it would deliver to plaintiff, J. M. M., a message bearing the news of the death of plaintiff's sister and calling him ^"Western Union Tel. Co. v. Bick- ''Not prejudicial when taken in erstaff, 100 Ark. 1, 138 S. W. 997, connection with other instructions. Ann. Cas. 1913 B, 242. Markley v. Western Union Tel. Co. "Western Union Tel. Co. v. Bick- (Iowa), 141 N. W. 443. erstaff, 100 Ark. 1, 138 S. W. 997, "^ Markley v. Western Union Tel. Ann. Cas. 1913 B, 242. Co., 151 Iowa 612, 132 N. W. Zl. 64 — Br.\nson's Inst. § 884 INSTRUCTIONS FORMS. lOIO to the phone, and that the agents or servants of the defendant company failed to use reasonable diligence to deliver the same within a reasonable time after receiving same, and that plaintiff was thereby prevented from attending the funeral of his sister and viewing her remains, you will find for plaintiff. Unless you so beheve you will find for the defendant.^" (4) The court instructs the jury that unless some direction to the contrary be given to the telegraph company, such company is authorized to deliver at the place of business of the sendee any telegram directed to him. But it must be delivered to the sendee's hand or to a hand authorized expressly or impliedly to receive it for the sendee.^^ (5) The court instructs the jury that the law imposes on the defendant the duty to transmit and deliver with reasonable promptness all messages entrusted to it for transmission, and if the jury find as a matter of fact that the agent of the company came to its office at J., S. C, the morning after the evening the said message was received, and found said message and during office hours, negligently failed to deliver with reasonable prompt- ness the same to the plaintiff, whereby plaintiff suffered mental anguish or other damage, the company is responsible for such negligence and damage, and their verdict must be for the plain- tiff." (6) The court instructs the jury that if you find that the plaintiff, G., and W. R., were in partnership and had a place of business, and that the telegram directed to the plaintiff was de- livered to R. at such place of business, and he receipted therefor in the name of G., this would be sufficient to acquit the telegraph company of any negligence as to the delivery. If you find R. was authorized expressly or impliedly to receive the same for G.^^ (7) The court instructs the jury that if you find from the evidence that on the date in question the agent of the company at H., when he received the message, agreed that it should be de- livered promptly that night, then it was the duty of the agent of '"Cumberland Tel. &c. Co. v. Max- "^ Harrison v. Western Union Tel. berry, 134 Ky. 642, 121 S. W. 447. Co., 75 S. Car. 267, 55 S. E. 450. " Glover v. Western Union Tel. ^ Glover v. Western Union Tel. Co., 78 S. Car. 502, 59 S. E. 526. Co., 78 S. Car. 502, 59 S. E. 526. lOII TELEGRAPHS AND TELEPHONES. §884 the company at E. L. to use ordinary diligence to deliver the message to the plaintiff with reasonable promptness, and a failure to do so would be negligence, entitling the plaintiff to recover, provided the message could have been delivered with the use of ordinary diligence in time for the plaintiff to have reached his sister's bedside before her death, and you find that under the circumstances plaintiff would have gone to her bedside before her death, had the message been so delivered.^* (8) The court instructs the jury that if you believe from the evidence that the defendant exercised ordinary care to promptly transmit the message in question to its agent at R., and that, when it was received by the defendant's agent at R., he went out in the town and made inquiries of various people for him and went to the hotel, and looked and inquired for him, and that he found out from some person in R. that the plaintiff lived several miles in the country, and that he then mailed said message a short time after he received it to the plaintiff by depositing it in the post-office at R., addressed to plaintiff, and that he then on the same afternoon sent a service message to the plaintiff's agent at A. and stated that the message was not delivered, that the party lived in the country, and that he had mailed same, and if you believe that the defendant's said agent in so doing exercised such care as an ordinarily prudent person would have exercised under the same or similar circumstances, then in case you so be- lieve you will return your verdict in favor of defendant.^^ (9) The court instructs the jury that if you beheve from the testimony that the defendant exercised such diligence in the premises as a reasonably prudent person under the same or sim- ilar circumstances would have exercised to find the plaintiff and deliver the messages, then you will find for the defendant. If, on the other hand, you find from the evidence that the defend- ant failed to exercise such diligence in an effort to find the plain- tiff and deliver the messages as a reasonably prudent person "Western Union Tel. Co. v. Sim- ''Western Union Tel. Co. v. Tim- mons (Tex. Civ. App.), 132 S. W. mens (Tex. Civ. App.), 125 S. W. 960. 376. § 885 INSTRUCTIONS FORMS. I0I2 would have exercised under the same or similar circumstances, then you will find for the plaintiff.^^ § 885. Sufficiency of sendee's address. — (1) The court in- structs the jury that it is a question of fact for the jury to deter- mine whether the accepting and undertaking to deliver the mes- sage without any further address than that given and failure to deliver same promptly was negligence on the part of the defend- ant under all the evidence in the case.^^ (2) The court instructs the jury that whether sending the message to the plaintiff without giving any further address than the city and state was such negligence on the part of the sender of the telegram as to excuse the defendant for failure to deliver is a question of fact for the jury.^* (3) The court instructs the jury that, if you find that the telegram as filed with the defendant read "Clinton" and not "Trenton," or if you find that the telegram as read over phone to the party in the telegraph office of defendant, who re- ceived it, read "Trenton," but that the party receiving the mes- sage as a man of ordinary care and prudence honestly understood the word to be Clinton, and that this was the proximate cause of the delay in the delivering of the telegram, if there was delay, then your verdict should be for the defendant.^' §886. Damages. — (1) The court instructs the jury that the contents of the telegram is of itself sufficient to charge the de- fendant company with notice of damages which might result from negligence in delivering the same/" (9) The court instructs the jury that if they find as a fact that when plaintiffs sent the message to E. to sell bales, March cotton, the plaintiffs did not intend to deliver cotton, and that it was the plaintiffs' intention that one party to the sale was to pay to the other only the difference between the prices named and "Western Union Tel. Co. v. Wil- ''Western Union Tel. Co. v. Sock- son (Tex. Civ. App.), 152 S. W. well, 91 Ark. 475, 121 S. W. 1046. 1169. ^Leppard v. Western Union Tel. =" Western Union Tel. Co. v. Sock- Co., 88 S. Car. 388, 70 S. E. 1004. well, 91 Ark. 475, 121 S. W. 1046. "Western Union Tel. Co. v. Wil- son, 97 Ark. 198, 133 S- W. 845. I0I3 TELEGRAPHS AND TELEPHONES. § 886 the market price of the cotton at the date fixed for executing the contract, then the whole contract constituted nothing more than a wager, and the plaintiffs are entitled to a verdict for only sixty cents.^^ (3) The court instructs the jury that, after the plaintiff re- ceived the message, he should have made every reasonable effort to reach J. C. in time for the funeral, and if by reason of the delay in delivering the message he could not after making such efforts have reached J. C. in time for the funeral, and there was no fault on his part, he was entitled to recover damages.^^ (4) The court instructs the jury that if they believe that the plaintiff, R., had no intention of attending the funeral of her sister, had she been informed in time to have done so, then there can be no injury, and their verdict should be for the defendant.^" (5) The court instructs the jury that if you believe from the evidence that the telegram referred to in this charge was sent and delivered to plaintiff, or that he had knowledge of the contents of said telegram, in time for him to have reached the bedside, of his father by the usual mode of travel before his death, or if you believe that the failure of plaintiff to have been with his father in his last sickness was the negligence of the plaintiff, and not the negligence of the defendant, and if you further believe that, after plaintiff received said message, he failed to use such dili- gence as an ordinarily prudent person would have used under the same circumstances to reach his father before his death, and if such failure contributed directly or proximately to his failure to see his father before his death, then you will find for the de- fendant." (6) The court instructs the jury that if you believe from the evidence that J. R. I. agreed to talk at o'clock a. m. after delivering the call sued on to defendant, and further believe from the testimony that had W. talked at a. m. she could not and would not have been able to catch a train that would have put her "Weld V. Postal Tel. Cable Co., Co., 73 S. Car. 520, 53 S- E. 985, 114 199 N. Y. 88, 92 N. E. 415. Am. St. 100. '"Sherrill v. Western Union Tel. ''Western Union Tel. Co. v. Mack, Co., 155 N. Car. 250, 71 S. E. 330. (Tex. Civ. App.), 128 S. W. 921. ^'Roberts v. Western Union Tel. § 88/ INSTRUCTIONS FORMS. IOI4 in G. before her brother died, then you will find for defendant without regard to whether or not defendant was negligent.'^ § 887. Damages — Exemplary damages. — ^The court in- structs the jury that "exemplary damages can not be recovered when the defendant's default is the result of ordinary negli- gence, merely ; and in such case, if no actual damages, capable of pecuniary estimation, have been sustained, but legal right of the plaintiff has been thereby violated, the jury can allow only nom- inal damages, — as one dollar, one cent, or other inconsiderable amount, — to vindicate plaintiff's legal right. But when the de- fendant's default is the result of ordinary negligence, but of neg- ligence so gross as to amount to recklessness and wantonness, or of such utter want of care as would raise the presumption of con- scious indifference to consequences, an award of punitive dam- ages would be proper. This is correct, I charge you. As that re- quest properly sets out, if the defendant company's failure to de- liver the telegram or to discharge the duty as set out in the com- plaint was the result of ordinary care, then the plaintiff could not recover exemplary damages. To recover exemplary damages, plaintiff must show wanton, wilful, or reckless conduct as stated in the request which I have just read to you." It being respect- fully submitted that from the said charges the jury might infer that, if they found the defendant guilty of negligence or gross negligence, they could award a verdict against it, whereas his honor should have impressed upon the jury that unless they found that the defendant or its agents were guilty of wanton, wilful, or intentional misconduct, or of conduct equivalent thereof, they should not find a verdict against the defendant in any sum.*' §888. Damages — Mental anguish. — (1) The court in- structs the jury that, if when the plaintiff learned that by reason of the negligence of the defendant, if there was negligence, he had been kept away from the bedside of his wife while she was sick, when it was his desire and wish to be with her, and do what he could for the relief of her suffering, after he realized that, "Wiggs V. Southwestern Tel. &c. '"Young v. Western Union Tel. Co. (Tex. Civ. App.), 110 S. W. 179. Co., 65 S. Car. 93, 43 S. E. 44a lOIS TELEGRAPHS AND TELEPHONES. § then, in a retrospective and reflective way, he may have suffered mental anguish, because he had been kept away from her bed- side." (2) The court instructs the jury that if you find from the pre- ponderance of the evidence that the defendant company was neg- ligent in delivering the telegram, then you will find for the plain- tiff in whatever amount you consider a reasonable compensation for the mental anguish and suffering sustained by her, by reason of said negligence.^* (3) The court instructs the jury that, if you find from the evidence that a message was sent from T., addressed to J. S., B. avenue, L. R., reading, "If you can, come at once, Clara," signed "Pa", and that this message was not delivered through defendant's negligence, and you further find that, had said message been promptly delivered to S., plaintiff would have gone to T. and would have attended the funeral of her brother, still said message does not on its face show either that plain- tiff's brother would be buried in T. or that the message was for the purpose of enabling plaintiff to attend his funeral ; and unless you further find that defendant was notified that this was the purpose of the message she is not entitled to recover for any mental anguish she may have endured because she was prevented from attending her brother's funeral, and your verdict will be for the defendant.^' (4) The court instructs the jury that, if the message refers to a case of sickness or death of some member of the immediate family of the sender or sendee, and there be actionable negligence on the part of the defendant company to deliver it, then the law would presume mental anguish, but there would be no presump- tion as to the amount of damages beyond nominal damages, and it would be upon the defendant to prove by the preponderance of the evidence that there was no mental anguish, and the burden would be upon the plaintiff to establish by the greater weight of the evidence the amount of damages beyond nominal damages. Mental anguish, for which a plaintiff would be entitled to recover, "Western Union Tel. Co. v. ™ Western Union Tel. Co. v. We- Rowell, 153 Ala. 295, 45 So. 73. niski, 84 Ark. 457. 106 S. W. 486. "Western Union Tel. Co. v. Wil- son, 91 Ark. 198, 133 S. W. 845. INSTRUCTIONS FORMS. IOI6 is not that which is due to the death, but it must be that which is caused by the negligence of the defendant. Sorrow and grief for the death of a member of the family, however, does not con- stitute a cause of action, unless it is intensified by the negligence of the telegraph company until it becomes mental anguish, and mental anguish is a very intense mental suffering, so much so as to temporarily increase mental pain, and, although the fact that the negligence of the defendant made the cause of disap- pointment and regret attending upon the sorrow and grief, be- cause of the act of negligence on the part of the defendant com- pany, still, unless a greater feeling than that was produced, it would not amount to mental anguish.*" (5) The court instructs the jury that the damages to be al- lowed for mental anguish are compensatory, and not exemplary, and should be limited to a satisfactory or reasonable compensa- tion. These are psychological in their nature, and may be dif- ficult of assessment, but still the jury should be careful to allow as damages whatever is a fair and reasonable compensation to the plaintiff for his mental anguish, caused by the negligence, and no further." (6) The court instructs the jury that, if you come to the issue as to damages, you should assess the damages at such a figure as would be reasonable, fair, and just compensation for the injury, and, on arriving at it, you should apply reasonable common sense methods such as reasonable business men would apply. You should not consider the grief and mental anguish natural to the loss of the relative. You should separate the grief at the aunt's death from the grief and anguish at not being at the funeral. It is natural to suppose that a man who loses a near relative suffers grief, and you should not consider that, but only consider the anguish and suffering he may have undergone by reason of the fact that he did not attend the funeral, if you find such failure was proximately caused by defendant's negligence.*^ (7) The court instructs the jury that it is the duty of such " Kivett V. Western Union Tel. " Sherrill v. Western Union Tel. Co., 156 N. Car. 296, 72 S. E. 388. Co., 155 N. Car. 250, 71 S. E. 330. "Kivett V. Western Union Tel. Co., 156 N. Car. 296, 72 S. E. 388. I0I7 TELEGRAPHS AND TELEPHONES. telegraph company to employ competent and diligent servants for the dehvery of messages intrusted to it for delivery; and if such agent is not competent, and is negligent in the delivery of such message, by reason of which the addressee of such message suiters mental anguish or other damages, the company is respon- sible therefor.*^ (8) The court instructs the jury that, after hearing all the facts, as men of common sense, with knowledge and experience in ordinary human sensibilities, you should determine whether any mental anguish did result to plaintiff from th^ negligence of the defendant.** "Harrison v. Western Union Tel. Co., 73 S. Car. S20, S3 S. E. 985, 114 Co., 75 S. Car. 267, 55 S. E. 450. Am. St. 100. ** Roberts v. Western Union Tel. CHAPTER LXXXVIII. THEATERS AND PLACES OF AMUSEMENT. Section 889. General duty of care. § 889. General duty of care. — The court instructs the jury that the defendant was not responsible unless the exhibition was in its nature such that it would necessarily or probably cause in- jury to some person present under defendant's invitation, unless guarded against, and the defendant failed to exercise due care to prevent harm.^ ^Thompson v. Lowell &c. St. R. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. 323. I0l8 CHAPTER LXXXIX. VENDORS AND PURCHASERS OF LAND. Section Section 890. Acceptance of deed. 893. Damages for breach of contract. 891. Good faith purchasers. 894. Methods of determining value 892. Rescission of contract of pur- of property. chase. § 890. Acceptance of deed. — The court instructs the jury that an acceptance of the quitclaim deed by one of the defendants would be binding upon them all, if the jury believe, from the evidence, that they proceeded under said deed, to use and enjoy the right conveyed by it.^ § 891. Good faith purchasers. — The court instructs the jury that the defendants in this case seek to resist the title of plaintiffs upon the ground that they are innocent purchasers, for a valuable consideration, without notice of plaintiffs' claim. The jury will determine from the evidence (i) whether or not de- fendants purchased the land; (2) whether or not they paid a valuable consideration; (3) whether or not any or all of the de- fendants had notice of plaintiffs' claim. Notice may be actual or constructive. Notice is a conclusive presumption, or presump- tion of law, which arises from certain facts proven to exist, as, for instance, the proper and legal registration of a deed in the county where the land lies. Actual notice exists when knowl- edge is actually brought home to the party to be affected by it, or where he might, by the use of reasonable diligence, have in- formed himself of the existence of certain facts. The question of notice is a question of fact, to be determined by the jury from all the facts and circumstances given in evidence before them on this subject. You are charged that any information which was • Kinney v. Turner, 16 111. 182. IOI9 § 892 INSTRUCTIONS FORMS. I020 sufficient to have put a prudent man upon inquiry will be regarded as notice, if it was of such a character that he might have ascer- tained the facts by the use of proper diligence. Whether such notice was brought home to either or all of the defendants, and, if so, whether they used the proper diligence to ascertain the facts, are questions of fact for the jury to determine from all the evidence. Notice brought home to an attorney or agent of a party, in regard to a particular transaction in which he is empow- ered to act, is equivalent to notice to the party himself.^ § 892. Rescission of contract of purchase. — The court in- structs the jury that one of the modes by which such a contract may be rescinded is by mutual agreement of the parties thereto. Such an agreement need not be in writing, nor in any express form of words at all, but may be inferred from the acts, conduct and declarations of the parties, if they are sufficient to justify the inference that the mutual understanding and intention of the parties were that the contract should be rescinded.^ § 893. Damages for breach of contract. — The court in- structs the jury that if they believe from the evidence that there was a demand for acreage property in and about W. on , 19 — , for purposes of subdivision and sale in lots, and that the land in controversy was at that time supposed to be adapted to subdivision and sale in lots, and in consequence of its supposed adaptability to such subdivision and sale in lots had a market value above the price which the plaintiff, C, agreed to pay for it, the jury must take into consideration such increased value above such contract price, whether such demand for acreage property, if any, was permanent or temporary, and whether, if the land in controversy had been subdivided, there would have been at that time any demand for the lots thereof or not.* § 894. Methods of determining value of property. — The court instructs the jury that in determining the value of the one hundred and sixty acre tract of land involved in this case they ' Sickels V. White, 66 Tex. 178, 17 * Dady v. Condit, 209 111. 488, 70 N. S. W. 543. E. 1088. ' Gwynne v. Romney, 92 Ind. 414. I02I VENDORS AND PURCHASERS. §894 are to fix the actual cash market value of said land on , 19 — ; and you are further instructed that you are not to consider the price which the land would sell for under special or extraor- dinary circumstances not existing at the time, but its fair cash value if sold in the market under ordinary circumstances, or under the circumstances then existing, for cash, and not on time, and assuming that the owner is willing to sell and the purchaser is willing to buy.° ''Dady v. Condit, 209 111. 488, 70 N. New York &c. Gas Coal Co., 207 Pa. E. 1088. See also Boyce v. Allen, 105 220, 56 Atl. 435. Iowa 249, 74 N. W. 948; Stewart v. CHAPTER XC. VERDICTS. Section 895. Forms of verdicts. §895. Forms of verdicts. — (1) The court instructs the jury that if you find the issues for the plaintiff, the form of your verdict may be : "We, the jury, find the defendant guilty and as- sess the damages at dollars," filling the blank space with whatever amount you may find, if any, writing the same on a separate sheet of paper and signing the same by your foreman.^ (2) The court instructs the jury that if they find for plain- tiff and against both defendants they may sign and return the following verdict, after inserting the amount of damages, tO' wit : "We, the jury, find the defendants guilty as alleged in the dec- laration and we assess the plaintiff's damages at the sum of dollars." The court instructs the jury that if you find for the defendants you may sign and return the following verdict : "We, the jury, find the defendants not guilty."^ (3) The court instructs the jury that the plaintifif has sued ' It was contended that "it was verdict in case they should find for prejudicial error to give this instruc- the plaintiff, and as the amount of tion because it permitted the jury to damages was necessarily left blank, it award such damages as they might directed the jury to fill the blank choose, without confining them to the space with the amount of damages evidence or stating any legal rule for awarded. It did not say to the jury the allowance of damages." The that they might fill the blank with court, upon review, says : "We do whatever amount they might' see fit to not consider the instruction subject award the plaintiff as damages, but to the objection made. It did not only that the amount awarded should purport to lay down any rule for the be inserted. There was nothing ob- assessment of damages or indicate to jectionable about the instruction." the jury that they were at liberty to Central R. Co. v. Ankiewicz, 213 111. award whatever amount they might 631, 73 N. E. 382. think the plaintiff ought to recover. "Economy Light &c. Co. v. Hiller, It merely gave to the jury a form of 211 111. S68, 71 N. E. 1096. 1022 1023 VERDICTS. § 895 upon six different notes, each of which constitutes a separate and distinct claim or cause of action in plaintiff's petition. Those claims are called "counts" in the instructions to you by the court. Your verdict should state your finding or decision as to each count or cause of action separately; and, if your finding is for the plaintiff as to any one or more counts you should also state in your verdict the exact amount which you find from the evi- dence to be still due and unpaid at the present time (including principal and interest to date) on each particular note mentioned in the count or counts of the petition on which you may so decide to find for plaintiff.^ 'Chicago Title &c. Co. v. Brady, 16S Mo. 197, 65 S. W. 303. CHAPTER XCI. WAREHOUSEMEN. Section Section 896. Warehouseman defined. 899. Loss by fire. 897. Care demanded of warehouse- 900. Right to storage charges. man. 901. Lien for storage charges. 898. Mixture of grain in storage. § 896. Warehouseman defined. — The court instructs the jury that the issues that you have for your consideration in this case, summarized, are whether or not the defendant, in its ca- pacity as wharfinger, warehouseman, and forwarder, is hable for neghgence as for the loss of the plaintiff's oats. The question whether or not the defendant company is a carrier of goods, as alleged in the complaint, is not befofe you for your consideration in this case, on account of the manner in which the proof has gone before you. I instruct you that a warehouseman is one who receives into a warehouse, for storage, goods, in consideration of hire or money paid for that service.^ § 897. Care demanded of warehouseman. — The court in- structs the jury that if you believe from the evidence that the plaintiff stored wheat in defendant's mill for safe-keeping, then defendant is bound only to use ordinary care in keeping and car- ing for said wheat.^ §898. Mixture of grain in storage. — (1) The court in- structs the jury that in determining the question as to whether or not the defendant had in his mill a sufficient quantity of wheat of like grade and character as that deposited by the plaintiff, you 'Foster v. Pacific Clipper Line, 30 'Mayer v. Gersbacher, 207 111. 296, Wash. SIS, 71 Pac. 48. 69 N. E. 789. 1024 1025 WAREHOUSEMEN. § 899 should take into consideration all the facts and circumstances proven in the case.' (2) The court instructs the jury that when grain in store in a warehouse is, by consent of the owner, mixed with other grain, though the owner in such case loses his right of property in the specific grain stored, he becomes entitled to an aliquot share of the common mass, and the acceptance by him, without objection, of a like amount, from such common mass, and with knowledge that it is not the identical grain stored, stops him from refusing to pay storage on that account.* § 899. Loss by fire. — ( 1 ) The court instructs the jury that if you believe, from a preponderance of the evidence, that there was an agreement by which the defendant was authorized to mix the wheat of plaintiff with his own grain, or grind it and dispose of it, and to keep in store for plaintifif an equal amount of wheat of the same grade, to be delivered to plaintiff at any time upon demand, then, if you further believe, from the preponderance of the evidence, that the defendant complied with his agreement, and kept in store, and had in the mill at the time of the fire, the requisite amount of wheat of the same grade of that delivered by plaintiff, and that he used proper care for the safety of the wheat and the prevention of fire, the defendant would not be liable for its loss, and the jury should find the issues for the defendant.' (2) The court instructs the jury that if you believe, from a preponderance of the evidence, that the plaintiff deposited the wheat with the defendant in his mill, and that the defendant was to have the right to return to the plaintiff the number of bushels of wheat so deposited, of like grade, at any time the plaintiff so desired, and that at the time the mill burned the defendant had in his mill the amount of wheat of like grade ready to be delivered to the plaintiff, and that the defendant used ordinary care to pre- vent the fire or destruction of wheat, then, in such case, the plain- tiff can not recover.* ' Mayer v. Gersbacher, 207 111. 296, " Mayer v. Gersbacher, 207 111. 296, 69 N. E. 789. 69 N. E. 789. ' Cole V. Tyng, 24 111. 100. ' Mayer v. Gersbacher, 207 111. 296, 69 N. E. 789. 6S — Branson's Inst. § 900 INSTRUCTIONS FORMS. 1026 § 900. Right to storage charges. — The court instructs the jury that if they beheve, that the plaintiffs had given a ware- house receipt for the corn, as being in a certain warehouse, then they could not charge the defendant for storing it in any other place, unless the defendant assented to its being stored in another place, or unless some other prior holder of the receipt had as- sented to it, and C. had notice of it when he purchased.' § 901. Lien for storage charges. — The court instructs the jury that a warehouseman who receives corn or other grain in store to be delivered at a future day, is responsible for its safe delivery to whoever may be authorized to receive it at the time of delivery, whether he was the owner when it was stored or not, and is entitled to a lien upon the property stored for any charges he may rightfully have for storage on it in the meantime, and has the right to enforce said lien against said property at or be- fore the delivery of the same, unless provided otherwise by con- tract between the owners ; and the fact that the grain stored may have been mixed with other grain so that the identity of this particular grain is lost, did not affect the right to storage, pro- vided such mixture was made with the consent of the owner, and the warehouseman has on hand during the time a sufficient quan- tity of grain of like quality to meet the demand and to be deliv- ered when called for.* ' Cole V. Tyng, 24 III. 100. ' Cole v. Tyng, 24 111. 100. CHAPTER XCII. WATERS. Section Section 902. Interference with percolating 905. Diversion of waters. waters. 906. Obstruction of water courses. 903. Springs. 907. Dams. 904. Navigable waters. 908. Removal of embankments. § 902. Interference with percolating waters. — The court instructs the jury that plaintiff can not recover in this action un- less they believe from the evidence that there was at the time men- tioned in plaintiff's petition an underground flow of water so well defined as to be a continuous stream, and that defendant obstructed the channel of said underground stream of water, and thereby caused the water from said well-defined underground flow of water to back up on plaintiff's land, and thereby injured the plaintiff. The jurors are instructed that water percolating through the ground beneath the surface, either without a definite channel, or in courses which are unknown and unascertainable, belongs to the realty in which it is found ; and if the jurors be- lieve from the evidence that the water found on the premises of defendant, B., percolates through the ground beneath the surface, either without a definite channel or in courses which are un- known and unascertainable, then the plaintiff can not recover in this action, although they may further believe from the evidence that said water so percolating through the ground comes from the spring on land of G. F. F. mentioned in plaintiff's petition.^ § 903. Springs. — The court instructs the jury that if they believe from the evidence that from time immemorial a stream or water course known as "the Marie Castor Creek", having a fixed, worn, and well-defined channel, has run, and still runs, across the ' St. Louis Trust Co. v. Bambrick, 149 Mo. 560, 51 S. W. 706. 1027 § 904 INSTRUCTIONS FORMS. IO28 property owned by defendant herein, and that the waters of said creek finally drain or flow into the M. river, and that from time immemorial a large spring of water, of great volume, has risen, and still rises, in a tract of land owned by G. F. F., adjoining plaintiff's land, and that said spring of water has flowed, and still flows, across the land owned by said F., and across other land into the said tract of land belonging to plaintifif, and from thence into and through a well-defined and fixed underground channel under and through St. L. avenue, and into the premises of defendant; that said water flowed through the said channel into the channel of said Marie Castor creek; and that the flow from said spring has been, and still is, continuous and of great volume, and that the same has worn and established for itself a well-defined and' known channel and bed for the entire distance from the point where the said spring rises to where it flowed into the said Marie Castor creek; and that said channel and stream has also carried off and conveyed all surface water and other waters flowing into the same from other sources ; and if the jury further find that the said defendant has excavated the ground above the said channel at a point upon and where it passes under his said premises, and has thereby, or in any manner, interfered with and obstructed the flow of the said water through the same, so that the waters from said spring and other waters running through said channel have been caused to, and have, set back and accumulated to such an extent as to overflow the premises of plaintiff, and that by reason thereof the same have overflowed the premises of plaintiff, and thereby caused the quarry on plain- tiff's premises to become, and that the same has become, or par- tially, filled with water; and if the jury further find from the evidence that the plaintiff's said quarry has been injured, and the beneficial use thereof destroyed, by said act of defendant in ob- structing the said water course and channel (if you believe from the evidence that the defendant did so obstruct it), — then the plaintiff is entitled to recover, and you should so find by your verdict.^ § 904. Navigable waters. — The court instructs the jury ^ St. Louis Trust Co. v. Bambrick, 149 Mo. 560, 51 S. W. 706. 1029 WATERS. § 907 that a navigable stream is one capable of being used by the public at all times or periodically during the year for times long enough to make it susceptible of beneficial use to the public as a means of transportation/ §905. Diversion of waters. — (1) The court instructs the jury that if they believe from the evidence that the improvement made by the defendant, and that, causes, if it does so cause, the water to be diverted on to plaintiff's land as set out in instruction No. — , was intended to be and is a permanent improvement, and the cause that produces the overflow can not be remedied at a rea- sonable expense, then the measure of damage that the plaintiff is entitled to recover is the diminution in the market value of his land caused by the diversion of the water.* (2) The court instructs the jury that the first question then, for you to determine is this : Did the water which flowed down the side of this hill in times of rainfall and the thawing of snow flow down through a natural and well-defined channel or did it not? If it did, the defendant had no right to change the flow of that water so as to produce injury to the plaintiff. If it did not flow down through a natural well-defined channel, but dis- charged itself generally upon the right of way of defendant, then the defendant could provide for its discharge from that right of way in such a manner as it saw fit.° § 906. Obstruction of water courses. — The court instructs the jury that if the improvement complained of was only intended for temporary purposes, or the cause that produces the overflows can be remedied or removed at a reasonable expense, then the measure of damage to which the plaintiff is entitled is the diminu- tion in the value of the use of the property caused by the overflow up to the time of the trial.* § 907. Dams. — The court instructs the jury that the owner of a dam must use such reasonable care and skill in its construc- ' Burr's Ferry &c. R. Co. v. Allen "Possum v. Chicago &c. R. Co., 80 (Tex. Civ. App.), 149 S. W. 358. Minn. 9, 82 N. W. 979. "Louisville &c. R. Co. v. Roberts, ° Louisville &c. R. Co. v. Roberts, 144 Ky. 820, 139 S. W. 1073. 144 Ky. 820, 139 S. W. 1073. § 908 INSTRUCTIONS FORMS. IO3O tion and maintenance that it will be capable of resisting usual, ordinary, and expected freshets. A dam must be so constructed in the first instance as to be capable of receiving, if necessary; the water that would originate by such pressure and such rains as would be reasonably expected by a man of ordinary prudence and foresight. That is the test.' § 908. Removal of embankments. — The court instructs the jury that if they believe from the evidence that the defendants without right and against the will of plaintiffs removed an em- bankment which had been erected across the canal, as set forth in the complaint, and that, by reason of such removal, the waters flowing in said canal from S. slough were caused to flow on to the lands of plaintiffs, to their injury, then the jury should find for plaintiffs such sum as will fully compensate them for all loss sustained by the act of defendants in removing said embankment, not exceeding the sum claimed in the complaint, to wit, $6,000.^ 'Hunter v. Pelham Mills, 52 S. Car. 'Learned v. Castle (Cal.), 4 Pac. 279, 29 S. E. 727, 68 Am. St. 904. 191. CHAPTER XCIII. WHARVES. Section 909. Collapse of dock. § 909. Collapse of dock. — The court instructs the jury that a presumption of that kind is not conclusive at all, but that if you should consider the plaintiff's case with reference to the last in- struction that I have given you, and should come to the conclu- sion that negligence had been shown by a presumption of that kind, then it would be your duty to consider the defense alleged on the part of the defendant, with reference to the use of due care ; and the law a;t that stage would then cast upon the defend- ant the burden of proving by a fair preponderance of the evidence that the collapse of the dock had occurred in spite of the use of due and ordinary care on the part of the defendant, or that the collapse had occurred by reason of some agency or cause for which the defendant was not to blame at the time. I instruct you that negligence will not be presumed from the mere fact of the loss of the oats, but the fact of negligence must be shown by plaintiff, by a fair preponderance of the evidence, under the rules and in accordance with the instructions that I have heretofore given you.^ 'Foster V. Pacific Clipper Line, 30 Wash. SIS, 71 Pac. 48. IO31 CHAPTER XCIV. WILLS. Section 910. Execution of will. 911. Execution of will — Attestation. 912. Execution of will — Proof. 913. Evidence on question of genuine- ness. 914. Declarations of testamentary in- tentions. 915. Agreement to provide in will for payment of services. 916. Title taken by devisee. 917. Testamentary capacity — General rules for determining compe- tency. Testamentary capacity — Mean- ing of disposing mind and memory. Testamentary capacity — Insanity. Testamentary capacity — D e 1 u- sions — Monomania. 921. Testamentary capacity — Eccen- tricities. Testamentary capacity — Old age. Testamentary capacity — Drunk- enness. Testamentary capacity — P r e- sumptions and burden of proof. 918. 919. 920. 922. 923. 924. Section 925. Testamentary capacity — Evidence on question. 926. Undue influence — In what it con- sists. 927. Undue influence — Effect. 928. Undue influence — Persons occu- pying confidential relations. 929. Undue influence — Child over par- ent. 930. Undue influence — Physician over patient. 931. Undue influence — Attorney over client. 932. Undue influence — Over aged per- sons. 933. Undue influence — Presumptions and burden of proof. 934. Undue influence — Evidence on question. 935. Inequality of division among ob- jects of testator's bounty. 936. Violation of natural justice in making distribution. 937. Forged wills — Burden of proof. § 910. Execution of will. — ( 1) The court instructs the jury- that in this state it is provided by statute that any person of full age and sound mind may execute a will, which, to be valid, must be in writing, witnessed by two competent witnesses, and signed by the testator, or by some person in his presence, and by his express direction.^ ' In re Convey, 52 Iowa 197, 2 N. W. 1084. 1032 1033 WILLS. § 910 (2) The court instructs the jury, for the proponent, that if they beheve from the evidence that the testator, R. 'W. T., on the day of , 19 — , at the office of the P. Hotel in the city of M., did sign the instrument of writing presented for pro- bate herein as his last will and testament, in the presence of E. P. M., L. E. H., and C. R. P., or any two of the said persons, know- ing the same to be his last will and testament and understanding the same, and that then and there, immediately after the signing of the said last will and testament by said R. W. T., the said subscribing witnesses, or any two of them, who were present at the signing of the said instrument of writing by the said R. W. T., at his request, either directly made or through some other person, subscribed their names thereto as subscribing witnesses, in the presence of the said testator and of each other, and if the jury fur- ther believe from the evidence that at the time the said R. W. T., though in feeble health, was of mind and memory sufficiently sound to know and understand the provisions of the said alleged will, and did know and understand the same, and that the said R. W. T. was not influenced by the proponent, J. P. H., in any undue manner to execute the said alleged will, then the jury will find for the proponent, J. P. H.^ (3) The court instructs the jury that if under the law and the evidence you should find for the proponent and the probate of said will dated , , you will next consider whether or not the memorandum of agreement, dated , , exhibited in evidence, shall be admitted to probate in connection with and as a part of said will, and upon this issue you are instructed as fol- lows: If you believe from the evidence in this case that the memorandum of agreement above mentioned is the instrument referred to in item of the will, and that it had been reduced to writing prior to the time C. executed the will, and that it had been read over to C, and that she understood it at the time she executed said will; and you further believe from the evidence that prior to said time said instrument had been executed, by J. C, J. H. C, F. S. W., and J. W., prior to the time it was exe- cuted by M. J. C, and that at the time she signed said memoran- 'Hitt V. Terry, 92 Miss. 671, 46 So.829. §9" INSTRUCTIONS FORMS. IO34 dum of agreement and acknowledged the same, then you will find for the proponent that said contract should be probated along with said.will.^ (4) The court instructs the jury that if, on the other hand, you do not believe from the evidence that the instrument de- scribed in the last preceding paragraph of this charge is the in- strument referred to by C. in item of the will and herein exhibited in evidence, or if you do not believe that said instru- ment at the time C. signed the will exhibited in evidence was in writing, and has been signed by all the parties above named, ex- cept C, then you will find for the contestants that the contract shall not be probated as a part of the will.* ( 5 ) The court instructs the jury that no will is valid unless in writing, and signed by the testator, or by some other person, in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature, and, moreover, unless it be wholly written by the testator, the signature must be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time, and such wit- nesses shall subscribe the will in the presence of the testator.^ § 911. Execution of will — Attestation. — (1) The court in- structs the jury that the statute does not require that the sub- scribing witnesses shall see the testator write his name to the will; but it is sufficient if he did in fact sign the will, provided he afterwards acknowledged it as his will, and requested them to sign as witnesses." (2) The court instructs the jury that the attestation clause to the will is as follows : "The said will was signed, and at the re- quest of the testator we signed the same as witnesses in his pres- ence, and in the presence of each other." Now, if you find from the evidence that this attestation clause was read in the presence of the testator, and the witnesses at the time they signed the same, and was understood by the testator, this is sufficient pre- "AUday v. Cage (Tex. Civ. App.), "Chappell v. Trent, 90 Va. 849, 19 148 S. W. 838. S. E. 314. 'Allday v. Cage (Tex. Civ. App.), Mn re Convey, 52 Iowa 197, 2 N. 148 S. W. 838. W. 1084. 1035 WILLS. §911 sumptive proof, not only of publication, but also that the wit- nesses signed at his request/ (3) The court instructs the jury that if the proponents have therefore satisfied you that the instrument in evidence, marked "Exhibit A", is the last will and testament of D. R., and that he executed the same, and that at the time of the execution thereof he was of sound mind, and that he signed the instrument as and for his last will and testament, and that he signed the same in the presence of two or more competent witnesses, and that the signing and execution thereof was witnessed by two or more competent witnesses, or that it was signed by some person in the presence of the testator and by his express direction, and that the persons so witnessing the signing of the will by the testator signed the same as witnesses, in the presence of the testator and in the presence of each other, then you should find the will to be the last will- and testament of the testator, and that the same should be admitted to probate in this court, and say so by your verdict.^ (4) The court instructs the jury that if the instrument ex- hibited in evidence, of date , , purporting to be the last will of M. J. C, was in writing and was read over to M. J. C, and that thereafter she signed it, and that it was attested by J. C. G. and M. F., and that they, the said J. C. G. and M. F., and each of them, were at said time credible witnesses, above the age of years, and that they, the said J. C. G. and M. F., subscribed their names to said instrument in the presence of M. J. C, and in the presence of each other, after she had signed the same, and that at said time M. J. C. was over the age of 2 1 years and was of sound mind, that is, that the said M. J. C. had capacity to know and understand what she was doing and the effect of her act at the time she executed said paper; and if you further be- lieve from the evidence that said paper was and is her last will ; and if you further believe and find that said M. J. C. is now dead, and that she died in county, , where she resided at the time of her death, then you will find for the proponent and for 'In re Convey, 52 Iowa 197, 2 N. "Ross v. Ross, 140 Iowa SI, 117 N. W. 1084. W. IIOS. § 912 INSTRUCTIONS FORMS. IO36 the probate of said will, unless you find for the contestants, under subsequent instructions herein.^ (S) The court instructs the jury, for the proponent, that, in order to constitute a valid and legal execution of the last will and testament of a testator, it is necessary that the same shall be subscribed by him in the presence of two or more credible wit- nesses, and by the said two witnesses subscribed as witnesses in the presence of the said testator and of each other ; and the jury are instructed that the instrument of writing presented in this cause for probate by the proponent has been duly and legally exe- cuted in the manner above mentioned, and upon this issue the jury will find for the proponent." § 912. Execution of will — Proof. — (1) The court instructs the jury that the burden of proof is not on the contestant, L. S. v., to prove that W. R. V. did not sign the paper introduced in evidence as a will by the proponent, S. V.'^ (2) The court instructs the jury that while the onus of show- ing a compliance with the statute as above explained devolves upon the party seeking to establish the will, yet the formal execution may be shown by persons other than the subscribing witnesses, or may be inferred from circumstances, as well as established by the direct and positive testimony of the attesting witnesses and it is sufficient if the statute was substantially com- plied with.^^ (3) The court instructs the jury, for the proponent, that, while the burden of proof in this cause is on the proponent, this does not mean that the proponent must prove his case beyond a rea- sonable doubt. All that is required of him is to make out his case to the satisfaction of the jury by a preponderance of the evidence.^' (4) The court instructs the jury that the burden of proof is on the proponent, H., throughout to establish by a clear preponder- "AUday v. Cage (Tex. Civ. App.), "In re Convey, 52 Iowa 197, 2 N. 148 S. W. 838. W. 1084. " Hitt V. Terry, 92 Miss. 671, 46 "" Hitt v. Terry, 92 Miss. 671, 46 So So. 829. 829. " Venable v. Venable, 165 Ala. 621, 51 So. 833. 1037 WILLS. §912 ance of evidence, to the entire satisfaction of the jury, and of each and every one of them, the fact that the paper offered by him for probate was signed by the decedent, T., at a time when he, T., knew and understood the entire contents, and the full purport and effect thereof, as his sole and only true and original last will and testament, and that he signed the same, as above stated, in the presence of two or more credible witnesses, and that the same was, at the request of said testator, in his presence, attested in writing by two or more credible witnesses, and that the said testator was at said time fully informed and knew the entire con- tents of said paper, and that he, the said decedent, then and there published and declared the said instrument in the presence of two or more credible witnesses then and there to be his true and only original last will and testament, and that he, the said decedent, was then of sound and disposing mind, memory, and under- standing, and that he, the said decedent, was wholly uninfluenced or in any manner guided or directed about or in or concerning the signing, publication, or securing of any attestation thereof by any person whomsoever; otherwise, the jury can not return a verdict for the proponent.^* (5) The court instructs the jury that the burden of proof in this case never shifts from the proponent to the contestants, but that it is always, throughout the case, placed by the law upon the said proponent, H., and, if the said H. has not established his case in every particular by a clear preponderance of the evidence, it is the duty of the jury to return a verdict for the contestants/^ (6) The court instructs the jury that if they believe from the evidence that Dr. was the physician who attended the tes- tator during his last illness and who had been his physician for at least three years previously thereto and that he was present at the execution of the will and attested the same as a subscribing witness thereto and that said Dr. is a credible person and a man worthy of belief, then his evidence is entitled to great weight." "Hitt V. Terry, 92 Miss. 671, 46 So. "This instruction, refused by the 829. trial court, should have been given. '■■' Hitt V. Terry, 92 Miss. 671, 46 So. "It submitted to the jury the question ^- of the credibility of the witness and § 913 INSTRUCTIONS FORMS. IO38 § 913. Evidence on question of genuineness. — The court instructs the jury that if they beHeve that W. R. V. stated, after the day of , in the year , that he had made no will, this may be considered by them in determining whether or not the paper offered is genuine.^^ §914. Declarations of testamentary intentions. — (1) The court instructs the jury, for the proponent, that it is competent for the proponent, J. P. H., to testify as a witness in this cause, and that it is also proper for them to consider evidence of tes- tamentary intentions of the alleged testator, R. W. T., by the proof of declarations made by him in reference to his will, both before and after the execution thereof; and it is for the jury to determine from this evidence, and the whole evidence in the case, whether the testamentary intentions of the alleged testator were at the time of the making of the declarations in reference thereto by him as stated. If they believe from the evidence that he did make any such declarations, and if from the whole evidence the jury believe that the intentions of the said alleged testator were really as declared by him before he made the said alleged will, if they believe from the evidence that he made any such declara- tions, then the jury may legitimately draw an inference that when the subsequent will conformed to the said declarations that the told them if they found him to be a "In approving this instruction, credible person and a man worthy of given at the request of the contestant, belief, his evidence was entitled to the Supreme Court of Alabama says : great weight, and this was proper be- "The proponent had introduced, with- cause of his superior opportunities to out objection, testimony as to state- know the condition of the testator's ments made by the deceased subse- mind at the time of the execution of quent to the supposed execution of the will. He had been testator's phy- the will, with the evident purpose of sician and was present at the time of showing that he recognized said will. the execution of the will. He was This being the case, the contestant the only attesting witness who testi- had a right to meet said testimony by fied in favor of the will in this case, proof of other statements made by He not only had superior opportuni- the intestate tending to show that he ties to know the truth, but his con- had not made any will at all, and duct as a witness was consistent and necessarily to have the same consid- it was no objection that he was ered by the jury.'' Venable v. Vena- named in the instruction." Ward v. ble, 165 Ala. 621, 51 So. 833. Brown, 53 W. Va. 227, 44 S. E. 488. 1039 WILLS. - §916 intentions of the said testator had continued down to the making of the said will." (2) The court instructs the jury that although E. H. H. may have made oral declarations prior to the execution of his will to parties who were in no way interested in his property or affairs that he would leave his property to M. J. W. or the children of M. J. W., or other parties than the parties named in said will, that said E. H. H. was in no way bound by such declarations, and he had the right to change his mind at any time prior to the execution of said will, and, if the jury believe from the evidence that the said E. H. H. at the time of the execution of the said will knew what property he had and to whom he wished to leave it, they must sustain the will of the said E. H. H.^° § 915. Agreement to provide in will for payment of serv- ices. — The court instructs the jury that if they find that the services rendered and the improvements made by the plaintiff were valuable and that there was an understanding between the deceased and him during the time they were being rendered and made that he was to be compensated therefor by a provision in the will of the deceased to the amount thereof or more, and if subsequently it was agreed between the parties that this written agreement should be given in order to secure the plaintiff pay- ment for the same in case it should happen that the deceased "should die without making a will, and the written agreement was made for that purpose, then the consideration was sufficient and the agreement would be binding on the deceased.^" § 916. Title taken by devisee. — The court instructs the jury that M. C. acquired by the will of C. the absolute title to all property devised to her thereby, and full power to dispose of the same as she pleased, and the said right is not affected by any- thing the said C. may have said in regard to his said will, either before or after its execution; and the jury will disregard all evidence tending to show that what C. said in reference to said ''Hitt V. Terry, 92 Miss. 671, 46 "Huff v. Welch (Va.), 78 S. E. So. 829. 573. " Sword V. Keith, 31 Mich. 247. §917 INSTRUCTIONS FORMS. IO4O will, or to making it, or as to his desire as to what she should do with the property.^^ § 917. Testamentary capacity — General rules for determin- ing competency. — (1) The court instructs the jury that every person is presumed to be sane and to have sufficient mental ca- pacity to make a will. This presumption is to be taken into ac- count by the jury in considering, from all the evidence, whether, at the time the will here in question was made, the testator had sufficient mental capacity to make the same; and this presump- tion is to be taken into account by the jury, with all the other evidence, in determining the validity of the present will. If the jury find, from all the evidence in this case, that at the time the will in question was made the testator had sufficient mental capacity to understand what he was about when he made it and to remember and appreciate the property he had for disposal and his relations toward the objects of his bounty, so as to judge for himself what he wished to do in the disposal of his property, this is sufficient mental capacity to enable him to make a valid will, whether at the time his general health was good or not.^^ (2) The court instructs the jury that the owner of property, who has capacity to attend to his ordinary business, has the law- ful right to dispose of it, either by deed or by will, as he may choose ; and it requires no greater mental capacity to make a valid will than to make a valid deed ; and if such an owner chooses to disinherit his heir, or leave his property to some charitable object, he has a legal right to do so, and such disposition of his property is valid, whether it be reasonable or unreasonable, just or unjust. And the reasonableness or justice or propriety of the will are not questions for the jury to pass upon. If, therefore, the jury be- lieve from the evidence that when he executed the paper in dis- pute, I. F. had capacity enough to attend to his ordinary business, and to know and understand the business he was engaged in, then he had the right and the capacity to make such a will, and the jury should find the paper in dispute to be the will of said F.^^ ""McFadin v. Catron, 120 Mo. 2S2, ''American Bible See. v. Price, 115 25 S. W. 506. 111. 623, S N. E. 126. See Wheeler v. ="Shults V. Shults, 229 111. 420, 82 State, 158 Ind. 687, 63 N. E. 975; Da- N. E. 312. cey v. People, 116 111. 555, 6 N. E. 165. 1 041 WILLS. §917 (3) The court instructs the jury that, in order to make a vaHd will, it is only necessary that a man shall have mental ca- pacity sufficient for the transaction of the ordinary affairs of life, and, possessing this, though he may be feeble in mind and body from sickness or old age, he has the legal right to dispose of his property just as he pleases without consulting either his family or his acquaintances. And if the jury believe from the evidence that when he executed the paper in dispute I. F. knew what he was doing, and executed it as his will, understanding its nature and effect, and that at the time he had sufficient mind and mem- ory to transact his ordinary business, such as buying or selling or renting property, or collecting or paying out money or settling accounts, then the jury should find the paper in dispute ,to be the last will and testament of said I. F.^* (4) The court instructs the jury that if they believe from the evidence that I. F., at the time he signed the paper in dispute, had mind and memory sufficient to transact his ordinary business, and that when he made the will he knew and understood the busi- ness he was engaged in, then the jury should find said paper writ- ing to be the will of said F.^^ (5) The court instructs the jury that the capacity to com- prehend a few simple details, if the estate be small, might qualify a person, in that case, to intelligently dispose of his property by will, while if the estate be large, requiring the remembrance of many facts and the comprehension of many details, and the dis- position to be made is complicated, the same mental capacity may be wholly insufficient to the intelligent understanding of the busi- ness requisite to the making of a valid will.^° (6) The court instructs the jury that the law does not under- take to measure a person's intellect and to define the exact qual- ity of mind and memory which he shall possess to authorize him to make a will, yet it does require him to possess mind sufficient to know the extent and value of his property, the number and names of the persons who are the natural objects of his bounty, "American Bible Soc. v. Price, 115 =»Dillman v. McDanel, 222 III. 276, ' 111. 623, 5 N. E. 126. 7S N. E. 591, 113 Am. St. 400. ^'American Bible Soc. v. Price, 115 111. 623, 5 N. E. 126. 66 — Be.\nson's Inst. §9^7 INSTRUCTIONS FORMS. 1042 their deserts with reference to their conduct and treatment to- ward him, their capacity and necessity, and that he shall have sufficient active memory to retain all these facts in his mind long enough to have his will prepared and executed. If he is in pos- session of mental faculties to this extent, he is of sound mind, within the meaning of the law ; but if he is not in possession of mental faculties to this extent, he is of unsound mind, within the meaning of the law.'' (7) The court instriicts the jury that a person of sound mind — ■ that is, one who has sufficient mental capacity to make a valid will — within the meaning of the law in this case, is one who has full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, and intelligent perception and understanding of the disposition he desires to make of it, and of the persons he desires shall be the recipients of his bounty, and the capacity to recollect and comprehend the nature of the claims of those who are excluded from participating in his bounty; but it is not necessary that he should have sufficient ca- pacity to make contracts and do business generally, nor to engage in complex and intricate business matters. If the testator had an intelligent knowledge of the nature of the instrument he was executing, and sufficient intelligence and strength of mind to know and comprehend the natural objects of his bounty, the nature and extent of his estate, and the distribution he wished to make of his property, he had sufficient mental capacity to make a will.^^ (8) The court instructs the jury that if you shall believe from the evidence that at the time, or times, of executing the said paper or papers in contest the said A. M. was then laboring un- der such defect of mind and memory or reason that he did not then know the natural objects of his bounty and his duty to them, or the character and value of his estate, and was not then able to make a rational survey of it, and dispose of the same ac- cording to a fixed purpose of his own, then said deceased did not have mental capacity sufficient to make a will, and you should so find.'" " Crawfordsville Trust Co. V. Ram- ""Meuth v. Meuth (Ky.), 164 S. sey, 178 Ind. 258, 98 N. E. 177. W. 63. ^In re Law's Estate (Iowa), 138 N. W. 531. 1043 WILLS. §917 (9) The court instructs the jury that if a testator has mind enough to know and appreciate his relations to the natural ob- jects of his bounty, and the character and effect of the disposi- tions of his will, then he has a mind sufficiently sound to enable him to make a valid will/" (10) The court instructs the jury, for the proponent, that, even though they may believe from the evidence that there were times in the life of the alleged testator when, from bad health or otherwise, his mind was unbalanced to that degree that he was in- capable of understanding and attending to business, still, unless the jury believe from the evidence, further, that the unsoundness of mind of the testator existed at the time of the making of the said alleged last will and testament, and to that degree that he was incapable of understanding and did not understand the same, then the jury will find for the proponent upon the issue of in- sanity.^^ (11) The court instructs the jury that, in determining the issue of sufficient soundness of mind or testamentary capacity possessed by the testator to make a will, before you can find in favor of the proposed will you must believe from the preponder- ance of the evidence that at the time of the signing and execution thereof said testator had sufficient understanding to comprehend the nature of the transaction he was engaged in, the nature and extent of his property and to whom he desired to and was giving it, without the aid of any other person, and unless the defendant has shown by such preponderance of evidence that E. K. H. did possess all these requisites you should find the issue in the nega- tive and against the will.^^ (12) The court instructs the jury that it requires no greater mental capacity to make a valid will than to transact any ordi- nary business, and that the owner of the property who is of sound mind, as "sound mind" has been explained to you, has a lawful right to dispose of his property by will as he sees fit and proper, save as to such rights of dower as are in the wife. The '"McGinnis v. Kempsey, 27 Mich. ="Holton v. Cochran, 208 Mo. 314, 363. 106 S. W. 1035. ''Hitt V. Terry, 92 Miss. 671, 46 So. 829. §9^7 INSTRUCTIONS FORMS. IO44 natural objects of one's bounty, in law, are a man's wife, his chil- dren and those united to him by blood or marriage ; but if, being of sound mind as heretofore defined, and recollecting his chil- dren or kin, he chooses to disinherit them or give them or any of them a less share in his estate than they would have under the law if he had died without making a will, or to deprive those near- est to him in blood of all benefit of his estate, he has a right to do so and to determine what provision he desires to make for them, and such disposition of his property is valid, whether the jury consider it reasonable or unreasonable, just or unjust. If, there- fore, the jury believe from the evidence in the case that E. K. H., recollecting and knowing who his children and the natural ob- jects of his bounty were, chose to entirely disinherit any of them, or leave them or any of them a comparatively small portion of his estate, or less than he left to others, or less than under the law they would have been entitled to if he had died without mak- ing a will, he had a right to do so, provided he was at the time of sound mind, as "sound mind" has been explained.^' (13) The court instructs the jury that you may believe from the evidence in this case that said paper, dated , , and purporting to be the last will of M. J. C, and was executed by her with the formalities and solemnities and under the circum- stances required by law to make it a valid will, as set out in the last preceding paragraph of this charge, still if you do not believe from the evidence that M. J. C. at the time of the execution of said will was of sound mind, that is, if you do not believe from the evidence that she had the capacity to know and understand what she was doing and the effect of her act at the time she ex- ecuted said paper, then you will find for the contestants, and against the probate of said will.^* (14) The court instructs the jury that for the testator to be mentally capable of making a valid will, or to be of testamentary capacity, it is sufficient if at the time of executing said will the testator had an tinderstanding of the nature of the business in which he was engaged, a recollection of the property he meant to dispose of, of the persons who were the objects of his bounty, ^'Holton V. Cochran, 208 Mo. 314, "Allday v. Cage (Tex. Civ. App.), 106 S. W. 1035. 148 S. W. 838. 1045 WILLS. §917 and the manner in which his property was to be distributed among them. It is not necessary, however, that the testator should ac- tually recall or recollect all of his property; it is sufficient if he was at the time of executing the will mentally capable of doing so ; it is not necessary that he should have comprehended the pro- visions of his will in their legal form; it is sufficient if he fully comprehended it and understood at the time of execution of said will the actual disposition which he was thereby making or in- tended to make of his property. The jury are further instructed if they shall believe from the evidence that at the time of execut- ing said will the mind and memory of the testator was sufficiently sound to enable him to know and understand the extent and amount of his property and his relations to the objects of his bounty, and the business in which he was engaged, then he was of sound mind and memory within the meaning of the law and they must find for said will.^° (15) The court instructs the jury that, neither sickness, old age, nor impaired intellect nor all of them combined are sufficient, standing alone, to render invalid a will and even if the jury be- lieve from the evidence that any one or more or all of these conditions existed in the case of the testator E. H. H. when he executed the will in question, and even though the jury shall be- lieve from the evidence that the testator at the time of executing the said will was of advanced age or was infirm in health, and even though they may believe from the evidence that his intellect was impaired to some extent, nevertheless if they shall further believe and find from the evidence that at the time of executing the said will the said E. H. H. was capable of recollecting the property he was about to dispose of, the persons who were the objects of his bounty and the manner in which he wished his property distributed among them, and had an understanding of the nature of the business in which he was engaged, then the jury must find that he had legal capacity to make a valid disposition of his estate."" (16) The court instructs the jury that it is not necessary that a person should possess the highest qualities of mind in order to '=Huff V. Welch (Va.), 78 S. E. "Huff v. Welch (Va.), 78 S. E. 573 573. § 9^8 INSTRUCTIONS FORMS. IO46 make a will, nor that he should have the same strength of mind which he formerly may have had ; the mind may be in some de- gree debilitated, the memory may be enfeebled, the understand- ing may be weak, and the testator may be wanting in capacity to transact many of the ordinary affairs of life, but it is sufficient if he possesses mind enough to understand the nature of the busi- ness in which he is engaged in making his will, has a recollec- tion of the property he wished to dispose of thereby, knows and recalls the objects of his bounty, and the manner in which he wishes to distribute his property among them.^' (17) The court instructs the jury that they can not measure the testator's capacity nor inquire into the wisdom and prudence of his disposition of the property if the jury believe from the evidence that he is legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his action. He is under no legal obligation to will his property to his relations, the justice or propriety of the will is not a question for the jury except that they may consider that matter as a circumstance bearing upon the testator's mental ca- pacity. If he is a capable testator, he can will his property as he chooses.^* § 918. Testamentary capacity — Meaning of disposing mind and memory. — (1) The court instructs the jury that in de- termining whether or not a man is of sound mind and memory, he should be compared with himself and not with others. His manner, talk and actions at a time when it is alleged he was not of sound mind and memory should be compared with his manner, talk, and action at a time when his sanity was not questioned.^" (2) The court instructs the jury that, in order for a will to be valid, the person making the same must, at the time of the execution thereof, be of sound mind and memory sufficient to understand, appreciate and be equal, mentally, to the task under- taken. In order to be of such sound mind and memory, the per- "Huff V. Welch (Va.), 78 S. E. '"DiUman v. McDanel, 222 III. 276, 573. 78 N. E. 591, 113 Am. St. 400. =»Huff V. Welch (Va.), 78 S. E. 573. 1047 WILLS. §918 son making such will must, at the time he signs it, be capable of knowing what his property is, who are the natural objects of his bounty, and be able to understand the nature, consequence and effect of the act of executing his will. All of these elements must concur, and the absence of any one of them will render such per- son incompetent to make a valid will, although all the other ele- ments may be present; and if you believe, from the evidence, that the said F. S., at the time of the execution of the said alleged will and codicil, was not capable of knowing who were the natural objects of his bounty, then and in that case you will find against the validity of said alleged will and codicil; and if you believe, from the evidence, that the said F. S., at the time of the execu- tion of said alleged will and codicil, did not understand the na- ture or consequence of the execution of his will and codicil, then and in that case you must find against the validity of the alleged will and codicil. You are further instructed, upon the subject of soundness of mind, that even where a testator is of sound mind at the time he signs or executes it, yet if he is so far under the dominion of a person in whose favor he makes the will as to pre- vent the free exercise of his judgment, such testator is not, in the contemplation of law, of disposing mind and memory. If you believe, from the evidence, that at the time of the execution of the alleged will in this cause, F. S. was so far under the dominion of any person as to prevent the free exercise of his judgment, said F. S. was not, at the time aforesaid, in contemplation of law, of disposing mind and memory, and in that case your ver- dict must be against the validity of the will and in favor of con- testants.*" (3) The court instructs the jury that a person of sound mind, ^'The Supreme Court of Illinois, in of these requirements would indicate approving this instruction, says : "The a want of testamentary capacity. The expression, 'all of these elements meaning of the instruction in ques- must concur,' does not mean the same tion on this point is simply that the as being able 'to hold all these things jury were required to believe that the in mind at the same time.' * * * testator possessed the mental power While it is not a proper direction to to comprehend and understand all tell the jury that he must be able to these elements at the time he exe- hold all these things in his mind at cuted the will." Dowie v. Sutton, 227 the same time, yet it is proper to tell 111. 183, 81 N. E. 39S, 118 Am. St. 266. the jury that the absence of any one § 9^8 INSTRUCTIONS FORMS. IO48 within the«meaning of the law in this case, is one who has full and intelligent knowledge of the act he is engaged in, a full knowl- edge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons he desires shall be the recipients of his bounty, and the capacity to recollect and comprehend the nature of the claims of those who are excluded from participating in his bounty; but it is not necessary that he should have sufficient capacity to make contracts and do business generally, nor to engage in complex and intricate business matters.*^ (4) The court instructs the jury that a person of sound mind and memory, within the meaning of the law, is one who has full knowledge of the act she is engaged in and of the property she possesses, an intelligent understanding of the disposition she de- sires to make of it and of the persons she desires shall receive her property, and the capacity to recollect and apprehend the nature of the claims of those who are excluded from participating in her bounty. It is not necessary that she should have sufficient capacity to make contracts, to do business generally, or to en- gage in complex and intricate business matters. And if the jury believe, from the testimony in this case, that, at the time of mak- ing the will in controversy, the deceased, S. G., had such a knowl- edge as above defined, and possessed such understanding of the disposition she desired to make of her property and of the per- sons she desired to receive the same, and had capacity to recollect and apprehend the nature of the claims of those who were ex- cluded from participating in her bounty, then she would be of sound mind and memory, within the meaning of the law, even though the jury may believe from the testimony that she was physically weak, and did not have the mental capacity sufficient to make contracts, to do business generally, or to engage in com- plex and intricate business matters. But if, on the other hand, you find, by a preponderance of the evidence, that, at the time of making the will in controversy, the deceased, S. G., had not such knowledge, as above defined in this instruction, and did not possess such understanding as to the disposition she desired to make of her property and of the persons she desired to receive " Meeker v. Meeker, 74 Iowa 352, 37 N. W. 773, 7 Am. St. 489. 1049 WILLS. § 919 the same, and did not have capacity to recollect and apprehend the nature of the claims of those who were excluded from partici- pating in her bounty, then she would not be of sound mind- and memory, within the meaning of the law.*^ (5) The court instructs the jury that the words "sound and disposing mind and memory" mean a mind sufficient to enable a testator to understand what business he was engaged in while he was making and executing a will, also to enable him to know who were the natural objects of his bounty, and his relation to them and what property he had and the disposition he desired to make of it. And if the jury shall find from the evidence that (name of testator), at the time he executed the instru- ment in evidence, had sufficient mind and memory to under- stand that he was engaged in making a will and knew what prop- erty he had, knew who his relatives were, and comprehended the claims that they had on his bounty, and understood what dispo- sition he wanted to make of his property, then he possessed a sound and disposing mind and memory and sufficient capacity to make a valid will.*^ §919. Testamentary capacity — Insanity. — (1) The court instructs the- jury that any impairment of the mental faculties, or dementia, "which destroy testamentary capacity as defined in these instructions, disqualifies a person from making a will, even though it has not reached the stage of absolute imbecility."** (2) The court instructs the jury that if you believe, from the evidence, that although F. S. had sufficient capacity to attend to the ordinary business affairs of life, yet that with regard to sub- jects connected with the testamentary disposition and distribu- tion of his property and the natural objects of his bounty he was insane, and while laboring under such insanity he signed the alleged will and codicil in question, and that in making and sign- ing it he was so far influenced or controlled by such insanity as to be unable rationally to apprehend the nature and effect of the provisions of said alleged will and codicil, and was thereby led to " Hudson V. Hughan, 56 Kans. 152, " Dillman v. McDanel, 222 111. 276, 42 Pac. 701. 78 N. E. 591, 113 Am. St. 40O. * Gordon v. Burris, 153 Mo. 223, 54 S. W. 546. 8 9^9 INSTRUCTIONS FORMS. IO5O make the alleged will and codicil as he did, then you must find the alleged will and codicil not to be the will and codicil of the said F. S." (3) The court instructs the jury that if they believe from the evidence that although I. F. had sufi&cient capacity to attend to the ordinary business afifairs of life, yet that, with regard to sub- jects connected with the testamentary disposition and distribu- tion of his property and the natural objects of his bounty, he was insane, and that while laboring under such insanity he made the will in question, and that in making it he was so far influenced or controlled by such insanity as to be unable rationally to compre- hend the nature and effect of the provisions of the will, and was thereby led to make the will as he did, then the jury must find the will not to be the will of the said I. F. An insane delusion is a fixed and settled belief in facts not existing, which no ra- tional person would believe. Such delusion may sometimes exist as to one or more subjects. And if the jury believe from the evi- dence in his case that I. F. was laboring under such insane delu- sions upon subjects connected with the testamentary disposition of his property and the natural objects of his bounty when he made the will in question, and was thereby rendered incompetent to comprehend rationally the nature and effect of the act, and that but for such delusions he would not have made the will as he did, then the jury should find against the validity of the will.*" (4) The court instructs the jury, for the proponent, that on the issue of insanity of the alleged testator the question for them to determine is, what was the condition of the mind of the al- leged testator at the time of the making and executing of the in- strument of writing presented for probate herein? And while it is true that the jury may take into consideration, on this issue, the condition of the alleged testator's mind at other times, yet the nearer to the time of the alleged execution of the said alleged will that the witnesses observed the said alleged testator the more important is the testimony on the said issue; and even though "Dowie V. Sutton, 227 111. 183, 81 State, 1S8 Ind. 687, 63 N. E. 975; N. E. 395, 118 Am. St. 266. Dacey v. People, 116 111. 555, 6 N. E. " American Bible Soc. v. Price, 115 165. 111. 623, 5 N. E. 126. See Wheeler v. 105 1 WILLS. §920 the jury; may believe from the evidence that there were times when the said R. W. T. was not of sound, disposing mind, mem- ory, and understanding, if they believe further from the evidence that he was, at the time of the making and executing of the said alleged will, of sound, disposing mind, memory, and understand- ing, they will find for the proponent on the issue of alleged insanity/^ (5) The court instructs the jury that, if they believe from the evidence that the said T. was insane at all times shortly before the alleged signing of the said paper, then the law presumes that the like condition of mind continued up to and at the time of the execution of the said alleged signing.** (6) The court instructs the jury that testamentary incapacity does not necessarily require that a person shall actually be insane. Weakness of intellect, regardless of how it may arise, may ren- der the testator incapable of making a valid will, provided such weakness really disqualifies him from knowing or appreciating the nature, effect, and consequences of the act he is engaged in.*" § 920. Testamentary capacity — Delusions — Monomania. — (i) The court instructs the jury, for the defendants, that the natural objects of a testator's bounty are those persons who, by reason of kinship or ties of gratitude, may reasonably be sup- posed to have some claims upon him; but that no one, however nearly related he may be, has any natural right that can be as- serted against the will of the testator. So, in this case, the mere fact, if it be a fact, that J. C. was the son-in-law of W. B. did not of itself entitle him to be regarded as a natural object of the bounty of W. B. ; and although the jury may believe, from the evidence, that W. ,B. was prejudiced against J. C, yet unless they further believe, from the evidence, that J. C. had so conducted himself as to be entitled to the gratitude of his father-in-law, and to be regarded as a natural object of his bounty, such prejudice, Although morbid, and amounting to an insane delusion would not " Hitt V. Terry, 92 Miss. 671, 46 So. -'Huflf v. Welch (Va.), 78 S. E. 829. 573. ''Hitt V. Terry, 92 Miss. 671, 46 So. 829. 8 9^0 INSTRUCTIONS FORMS. IO52 of itself invalidate his will; provided, such insane delusion did not prevent the testator, W. B., from understanding and appre- ciating his relation to those who had a claim upon his bounty, and who were the natural objects of his bounty.'"' (2) The court instructs the jury that a man may have suffi- cient mind to know and comprehend that he is making a will and thereby disposing of his property, giving it to some of the natural objects of his bounty to the exclusion of others, and have an ob- ject in so doing which he fully comprehends, and yet be prompted so to dispose of his property by some form of monomania. And if the monomania affected in any way or entered into the making of the will, such will would be invalid and should be set aside." (3) The court instructs the jury that if you shall find as a mat- ter of fact that, at the time the will in question was executed, the testator was laboring under an insane delusion or mania, from whatever source he may have derived it ; that this story was un- true ; that he came to believe it was true, and acted upon that be- lief ; and that it was the cause of his making the unequal dis- position of his property evidenced by the terms of the will as be- tween his wife and daughter ; when, in fact, the whole story was false, and had no reason or probability for its foundation — then I charge you that that was such a mental delusion or derange- ment as would avoid the will.^^ (4) The court instructs the jury that if they believe from the evidence that the deceased, T., was before or at the time of the alleged execution of the said paper laboring under a delusion or delusions of the mind on any subject or subjects, or with respect to any person or persons, and that the said paper was the result in whole or in part of any such delusion or delusions, then said " Brace v. Black, 125 111. 33, 17 N. action and affects his purpose and ob- E. 66. ject in making a will, such will would "'"This instruction," says the Su- be invalid. This instruction was tac- preme Court of Indiana, "is criticized itly admitted to be correct in the case by counsel as inconsistent and contra- of Young v. Miller, 145 Ind. 652." dictory in terms. We can not concur Swygart v. Willard, 166 Ind. 25, 76 in the view of counsel in this regard. N. E. 755. See also Bradley v. On- The instruction correctly advises the stott (Ind.), 103 N. E. 798. jury that if the testator is suffering "Haines v. Hayden, 95 Mich. 332, from monomania which prompts his 54 N. W. 911, 35 Am. St. 566. I0S3 WILLS. §921 paper is void, and the jury will so find, although they may believe from a preponderance of the evidence that the mind of said T. was sound on all other subjects.^' (5) The court instructs the jury that,' although they may find from the eviddhce that E. K. H., at the time of executing the paper offered as his will, possessed many of the mental requi- sites in these instructions set out as necessary to qualify him to make a valid will, yet if the jury further find from the evidence that, from the time of turning over to his son, B., and his daugh- ter, A., the stocks of the Company belonging to them, down to and including the time of the execution of the paper here offered as a will, the said E. K. H. labored under the insane de- lusion, as hereinafter defined, that said son and daughter had exacted of him and that he had turned over to them a greater amount of said stocks than they were lawfully entitled to de- mand and receive from him as their trustee, and that such delu- sion overcame and controlled his will and judgment in the execu- tion of the papers offered as his will, and that without the opera- tion of such delusion upon and controlling his mind and judg- ment he would have made other provisions in his will for his said son and daughter, or either of them, then you should find that the paper offered is not the will of E. K. H. An insane delusion is a fixed and settled belief in something that in fact had no exist- ence, which no rational mind would believe.^* §921. Testamentary capacity — Eccentricities. — (1) The court instructs the jury that the eccentricities or peculiarities or radical or extreme notions or opinions upon religion, colleges, education, or Masonry and secret societies, will not necessarily render a man incapable of making a will; and if the jury find that, in making the will in dispute, I. F. had sufficient mind and memory to understand the business he was engaged in when he made the will, then the jury should find in favor of said will, though said F. may have had eccentricities and peculiarities, '"Hitt V. Terry, 92 Miss. 671, 46 So. "Holton v. Cochran, 208 Mo. 314, 829. 106 S. W. 1035. § 922 INSTRUCTIONS FORMS. IO54 or extreme notions and opinions upon religion, colleges, educa- tion, or Masonry or secret societies.°^ (2) The court instructs the jury that even if they find from the evidence that I. F. had, during some portions of his life, ec- centricities or peculiarities, or even an insane delusion, or partial insanity, on the subjects of religion or Masonry or education, or any other subject, yet if they find from the evidence that, at the time he made the will in question, he had sufficient mind and memory to understand his ordinary business, and that he knew and understood the business he was engaged in, and intended to make such a will, the jury should find said will to be the will of said I. F/" § 922. Testamentary capacity — Old age. — (1) The court in- structs the jury that in order to make a valid will, the law requires that a person shall be of sound and disposing mind and memory, as defined in these instructions; and want of testamentary ca- pacity does not necessarily require that a person shall be insane. Weakness of intellect, arising from old age, or great bodily in- firmity or suffering, or from all these combined, may render the testatrix incapable of making a valid will, when such weakness disqualifies her from knowing or appreciating the nature, effect or consequence of the act she is engaged in.°^ (2) The court instructs the jury that the mere fact that a per- son is of great age creates no presumption against the ability of such person to dispose of property by deed or will; and in this case although you may believe from the evidence that the tes- tatrix, M. P., at the time of executing the paper in question, was of about eighty-six years, and suffering to some extent from weakness or bodily infirmity; yet such circumstances would not render her incapable of disposing of her property by will as she saw fit.'' (3) The court instructs the jury that if you find from the '"American Bible Soc. v. Price, 115 "'Pooler v. Cristman, 145 III. 405, 111. 623, 5 N. E. 126. See Wheeler v. 34 N. E. 57. State, 158 Ind. 687, 63 N. E. 975 ; Da- °= Pooler v. Cristman, 145 111. 405, cey V. People, 116 111. SSS, 6 N. E. 165. 34 N. E. 57. '"' American Bible Soc. v. Price, 115 111. 623, 5 N. E. 126. 1055 WILLS. § 923 evidence that the testator, D. R., was aged and of impaired mind and memory ; that although he may not have been legally incom- petent to make a will, yet the will of such a person ought not to be sustained, unless it appears that such disposition of his prop- erty has been fairly made, to have emanated from a free will without the interposition of others, and to accord to intentions previously expressed or implied from family relations, and in this case if you find from the evidence that the testator was over ninety years of age, with impaired mind and memory, and, al- though you may find he had sufficient mental capacity to make a will, yet, if from the evidence you believe that a disposition of his property has been made which is unfair to his legal repre- sentatives ; that such disposition did not emanate from a free will, and is not in accord with the testator's previous intentions, either express or implied from the family relations — you will be jus- tified in finding that it is not the voluntary and free will of the testator, and that such will was obtained by undue influence.*^' (4) The court instructs the jury that testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily infirmities or suffering, or from all these combined, may render the testator incapable of making a valid will, providing such weakness really disqualifies her from knowing or appreciating the nature, effects or consequences of the act she is engaged in. Eccentricity, pe- culiarities, oddities or the like, or weakness of mind ordinarily attendant upon old age, do not of themselves necessarily estab- lish a lack of testamentary capacity.^" § 923. Testamentary capacity — Drunkenness. — The court instructs the jury that, even if you believe from the evidence in the case that E. K. H. drank to excess or was suffering from disease, and either of these to such an extent as to weaken or impair his mental faculties, yet if you find that, at the time when it is alleged he executed the paper produced as his will, he was sufficiently sober and sufficiently in possession and control of his ™Ross V. Ross, 140 Iowa 51, 117 N. ™Manatt v. Scott, 106 Iowa 203, 76 W. IIOS. . N. W. 717, 68 Am. St. 293. § 924 INSTRUCTIONS FORMS. IO56 mental faculties to know and understand and comprehend the fact that he was then signing and publishing and declaring said paper as his will, and so as to understand and comprehend the nature and extent of his property, and who were reasonably within the range of his bounty, and to whom he was giving and how he was disposing of his property, without the aid of any other person, then the court instructs you that you should find he had sufficient mental capacity to make a will ; and, if you so find, your verdict will be in favor of the defendant, and you will find that the paper produced, of date the day of , in the year , is the last will of E. K. H."^ § 924. Testamentary capacity — Presumptions and burden of proof. — (1) The court instructs the jury that the burden of proof in this case, in the first instance, is upon the proponents of said pretended will, to show that at the time of the execution of the alleged will the said H. was of sound mind and memory. By sound mind and memory is meant that his mind and memory was such as to be able to transact the ordinary business of life.°^ (2) The court instructs the jury that the statute of this state provides that any person of full age and sound mind may dis- pose by will of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family. That the will must be witnessed by two C9mpetent witnesses, signed by the testator, or by some person in his presence and by his express di- rection, and must be in writing. You are instructed therefore that the burden of proof in the first place rests upon the propon- ents, that is the parties seeking to have the will established, to show by the evidence that at the time of the execution of the will in question the testator, D. R., was of sound mind, that he signed said instrument as, and for, his last will and testament, and that such will was witnessed by two competent witnesses; and it is primarily sufficient if the statute is shown to have been substantially complied with in this respect."^ '"Holton V. Cochran, 208 Mo. 314, "Ross v. Ross, 140 Iowa 51, 117 N. 106 S. W. 1035. W. IIOS. ""Keithley v. Stafford, 126 111. 507, 18 N. E. 740. 1057 WILLS. g 924 (3) The court instructs the jury that the contestants claim that at the time the will was executed by said D. R., if the same was executed by him, he was of unsound mind and mentally in- capacitated to make a valid will, and that the same was procured by fraud or undue influence. Now on this question you are in- structed that the burden of proof rests upon the contestants, and that they must establish this claim by a preponderance of the evidence before they can defeat the will on these grounds, or either of them. If the contestants have satisfied you, as afore- said, that the testator at the time of the making of the will was of unsound mind; that he was not in possession of his mental faculties so as to comprehend the effect and nature of the in- strument, and to be able to make disposition of his property with understanding and reason ; or if you find that the instrument pur- porting to be the last will of the said D. R. was caused to be ex- ecuted by fraud or undue influence — then you should find the in- strument invalid as a will, and that the same is not the last will and testament of the said D. R.®* (4) The court instructs the jury that if they believe from all the evidence that said instrument of writing is consistent in its provisions, and rational on its face, the presumption is that said J. B. was of sound mind at the time of its execution, and the burden shifts to contestants to show that he was not of sound mind at that time.°° (5) The court instructs the jury that if they believe from the evidence that the deceased, T., was before and at the time of the signing of the said alleged instrument of writing a confirmed and perhaps a hopeless invalid, and that from said cause, or from any other cause, he had in any degree lost any of his mental powers, or that his mind was then in any way impaired, it is the duty of the proponents to prove to the jury by a clear preponder- ance of the evidence that at the time he signed, the said alleged instrument he was fully and thoroughly informed and knew exactly the contents and effect thereof; that he, the said T., was then and there possessed of ample and suflicient testamentary capacity to make a will; that he, the said T., understood fully "Ross V. Ross, 140 Iowa 51, 117 N. °= Bramel v. Bramel, 101 Ky. 64, 39 W. 1105. S. W. 520. 67> — Branson's Inst. § 924 INSTRUCTIONS FORMS. IO58 the business in which he was then about to engage, and in which he was then engaged, and all the elements thereof ; that he then recollected and understood, and comprehended then and there, the nature and condition of his property, and the extent of his estate, the persons who were or should be the natural objects of his bounty, and his relations to them and their relations to him, the manner in which he wished to distribute his said property among them, or to withhold the same from them, or any of them, and the full scope and bearing of the provisions of the said paper which he was then and there about to sign ; that it is not enough that he should have known said facts, or any or all of said facts, when said paper was written by the said proponent, H., in the house of the said H., but that he must have known, and did know and comprehend and understand, all of the said facts above recited, and that the said T. must have possessed the said testamentary capacity as above described fully at the time and place at and when he signed the said paper, and that he must have known and then been fully informed of all of the con- tents and provisions thereof ; and if the proponent has not proved all of said facts to the satisfaction of the jury by a clear pre- ponderance of evidence it is the duty of the jury to return a ver- dict for the contestants."" (6) The court instructs the jury, for the proponent, that while it is true that the burden of proving that the alleged testator, R. W. T., deceased, was of sound, disposing mind, memory, and understanding at the time of the making and executing of the instrument of writing presented for probate herein, is on the proponent, yet the law presumes that every man is sane until the contrary appears by evidence, and, upon this legal presumption of sanity, the proponent has the right to rest on this presumption, until it is overcome by some evidence showing the insanity of the alleged testator at the time of the alleged making and execu- tion of said instrument of writing."^ (7) The court instructs the jury that the testamentary capacity of the decedent, T., must be shown by the proponent, H., and that the burden of proof is upon the said proponent to show such tes- ""Hitt V. Terry, 92 Miss. 671, 46 So. " Hitt v. Terry, 92 Miss. 671, 46 So. 829. 829. 1059 WILLS. 8 924 tamentary capacity by a clear preponderance of the evidence; and if the jury believe from the evidence that the said propon- ent has not met and successfully carried said burden, or if the testimony upon that point is evenly balanced, it is the duty of the jury to return a verdict for the contestants.*' (8) The court instructs the jury that it is not only the duty of the proponent to establish the testamentary capacity of the decedent, but also to establish that the said decedent had not been unduly influenced and was not unduly influenced either in the preparation or execution of the said instrument. The proponent must not only establish by a clear preponderance of evidence the fact that the said T. possessed a sound and disposing mind and understanding at the time of the signing of the said instrument, but that he knew the contents thereof, but also, if and after he shall have so established the existence of the said testamentary capacity, the said proponent must furthermore establish by a clear preponderance of the evidence the additional fact that, not- withstanding the fact that the jury may believe from a clear preponderance of evidence that the said T., at said time, pos- sessed a sound and disposing mind, memory, and understanding, but also that the said T. was not in any way unduly influenced in or about or concerning either the preparation or execution of the said instrument last aforesaid.*' (9) The court instructs the jury that a testator must have testamentary capacity to make a will at the time at which such will is executed; and, if the jury shall believe from the evidence that E. H. H. was mentally capable of making a will upon the date of its execution, the same is valid whatever may have been his condition mentally either prior or after the time of executing said will. The court instructs the jury that the burden is upon the proponents of the will in this case to establish that the paper writing in question offered as the last will and testament oi E. H. H., deceased, is the true last will and testament of the said E. H. H., and to do so they must establish to your satisfaction the following facts : First. That the paper offered in evidence and the whole paper was thoroughly understood by the said H. " Hitt V. Terry, 92 Miss. 671, 46 So. ™ Hitt v. Terry, 92 Miss. 671, 46 So. 829. 829. § 925 INSTRUCTIONS FORMS. IO60 and intended by him to be his last will and testament. Second. At the time of the writing and signing thereof the said H. was of sound and disposing mind and memory. Third. That the said paper writing was signed or acknowledged by the said H. in the presence of J. H. U. and C. H. K., the subscribing witnesses thereto, who were both present, and in the presence of the said E. H. H. at the same time, and that said subscribing witnesses subscribed the will in the presence of the testator, E. H. H.'" (10) The court instructs the jury that one of the issues in- volved in this contest is whether the decedent E. H. H. possessed sufficient mental capacity to make a will on the day of , 19 — , at the time the paper writing offered in evidence in this case was executed ; and the jury are now told that the test of tes- tamentary capacity is that the testator mvist have had sufficient mind and intelligence at the time the paper writing was executed to understand: First. The nature of the business in which he was engaged. Second. To recollect the property he was at- tempting to dispose of, to know and understand his relation to his blood kin or to others who might have claims upon him, and to determine the objects of his bounty, and the manner in which he wished to dispose of his estate with sense and judgment. And, if the jury believe that the decedent did not at the time the al- leged will was executed possess mental capacity to know and un- derstand these things, then they must find against the will.^^ (11) The court instructs the jury that, while the burden of proof is upon those offering a will for probate to show testa- mentary capacity on the part of the testator at the time the will was executed to the satisfaction of the jury, yet the court tells the jury that there is in all cases an existing presumption in favor of the testator's sanity and capacity, which is to be taken into consideration by the jury in determining the question of com- petency." § 925. Testamentary capacity — Evidence on question. — (i) The court instructs the jury that in determining the ques- "Huff V. Welch (Va.), 78 S. E. "Huff v. Welch (Va.), 78 S. E. 573. ^73. "Huff V. Welch (Va.), 78 S. E. 573. I06l WILLS. § 925 tion submitted to you as to the mental capacity of the testator at the time of the execution of the will in question, and in deter- mining the question of undue influence, neither his age nor the character and extent of his property is to be considered as evi- dence of incapacity on the testator's part, or of undue influence on the part of the proponents.''^ (2) The court instructs the jury that where a person of sound mind and memory is not subject to constraint or undue in- fluence he may dispose of his property by will as he sees fit. But where undue influence or want of testamentary capacity is charged, as they are in this case, all of the surrounding facts, including the bequests themselves, their propriety or impropriety, their reasonableness or unreasonableness, in view of the situation, relations, and circumstances of the testator, may be considered in determining whether the testator was, at the time of the execu- tion of the alleged will and codicil, of sound mind and memory, or whether the alleged will and codicil was procured by undue influence.'* (3) The court instructs the jury that, if the plaintiffs, in this cause, have proven, by a fair preponderance of the evidence, the charge that W. B. had not sufficient mental capacity to execute the will in suit at the time he signed it, then such will would be invahd in law, and you should so find. And if such proof has been made, the fact, if it be a fact, that the will has been here- tofore probated in the H. circuit court, would not uphold the will or render it valid. I instruct you that the record of the pro- bate of the will in question can not be considered by you as evi- dence tending to prove the sanity of the testator, W. B., at the time of the execution of said wiW^ (4) The court instructs the jury that the testimony of med- ical men of experience in their profession in this class of cases, after a careful examination of the testator's mental condition, touching the mental condition of the deceased at the time of the execution of the will in question, may be by you given more "Ross V. Ross, 140 Iowa SI, 117 N. "Bradley v. Onstott (Ind.), 103 N. W. 1105. E. 798. "Dowie V. Sutton, 227 111. 183, 81 N. E. 395, 118 Am. St. 266. § 925 INSTRUCTIONS FORMS. IO62 weight and consideration than the testimony of nonprofessional witnesses." (5) The court instructs the jury that testimony has been given in this case consisting of opinions of nonexpert witnesses as to the unsoundness of mind of the testator, A. L., and in relation thereto said witnesses have testified to certain facts and circum- stances which they claim to have observed as to the acts, ap- pearance and conduct of said A. L. both before and after the times of the execution of the said will and the codicil thereto. The law requires the opinion of such witnesses to be based upon facts which are given in evidence and detailed to the jury by said witnesses before giving said opinion, and it is for you to say what weight is to be given to such opinion of any such witnesses after first determining whether the facts and circumstances testi- fied to by him and detailed to the jury upon which said opinion is based, are consistent with unsoundness of mind as elsewhere defined in these instructions. With such limitation, the weight to be given the opinions of witnesses, both expert and nonexpert, is a matter peculiarly within your sound judgment and discretion, and you should consider, in connection therewith, the facts dis- closed by those witnesses who have given opinions of unsound- ness of mind, based upon their observations of the deceased as detailed in evidence, and also whether or not the facts enum- erated in the hypothetical questions propounded to expert wit- nesses have been established by the evidence offered and ad- mitted upon the trial.^^ (6) The court instructs the jury that in determining the is- sues in fact submitted to you under the instructions herein, you should carefully look to all the evidence in this case, and in so doing you should take into consideration the physical condition of S. G., arising from her age, sickness, or any other cause ; the condition of her mind at and before the time of the execution of the will in controversy ; the execution of the will, and its con- tents; the execution of any former wills by her, and the pro- visions thereof; the relations existing between her and the par- ties, respectively, herein, at and before the execution of the will "■Blake v. Rourke, 74 Iowa 519, 38 "In re Law's Estate (Iowa), 138 N. W. 392. N. W. 531. 1063 WILLS. § 926 in controversy ; her family and connections ; the terms upon which she stood with them; the claims of particular individuals; the condition and relative situation of the legatees or devisees named in the will ; the situation of the testatrix herself and the circum- stances under which the will was made ; and, in brief, every fact or circumstance which tends to throw any light upon the question submitted to you/' (7) The court instructs the jury that, in determining the issue of sufficient soundness of mind or testamentary capacity pos- sessed by the testator to make a valid will, the will itself and all its provisions may be considered by the jury, in connection with all the other facts and circumstances given in evidence." (8) The court instructs the jury that the testimony of cred^ ible witnesses present at the execution of the will is entitled to peculiar weight on the question of testamentary capacity, and that this is especially true of attesting witnesses whose duty it is to ascertain and judge of the testator's mental capacity at the time.'" (9) The court instructs the jury that direct proof is not nec- essary to overthrow a will, but any facts and circumstances are sufficient as evidence that will satisfy the jury of the incapacity of the testator to make testamentary disposition of his prop- erty at the time of the execution of his will.*^ §926. Undue influence — In what it consists. — (1) The court instructs the jury that it is not the means employed, so much as the effect produced, which must be considered in deter- mining whether undue influence has contributed to the making of the will ; for though the influence exerted over the testator was such as, if applied under ordinary circumstances, or exercised over persons of ordinary powers of resistance, would be regarded as innocent, yet if, in the particular case, it resulted in a dispo- " Hudson V. Hughan, 56 Kans. 1S2, ™Huff v. Welch (Va.), 78 S. E. 42 Pac. 701. S73. "Holton V. Cochran, 208 Mo. 314, "Huff v. Welch (Va.), 78 S. E. 106 S. W. 1035. 573. § 926 INSTRUCTIONS FORMS. I064 sition of property contrary to the testator's desire, the influence was undue. ^^ (2) The court instructs the jury, as a matter of law, that un- due influence in procuring the execution of a will which will ren- der a will so procured invahd is any improper or wrongful con- straint, machination or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do, or would do, if left to act freely. And if you believe, from the evidence in this case, that such un- due influence was exerted over F. S. by any person at the time he executed the alleged will and codicil involved in this suit, then and in that case it is your duty to find against the validity of such alleged will and codicil and return a verdict that the same is not the will and codicil of said F. S.^' (3) The court instructs the jury that to make a good will a man must be a free agent, but all influences are not unlawful. Appeals to the affections or ties of kindred, to gratitude for past services, or pity for future destitution, or the like, are all le- gitimate, and may be fairly urged on a testator. On the other hand, pressure of whatever character, if so exerted as to over- power the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity which the testator has not the will or strength to resist, and to which he yields for peace and quiet, if carried to a degree in which the testator's judgment, discretion or wish is overruled, will constitute undue influence, though no force is used or threat- ened. In other words, his will must be the offspring of his own volition, and not the record of the wishes and desires of some one else ; and in considering whether the testator's free volition had been overcome or controlled, the jury must consider his age, his physical and mental condition and all the circumstances surrounding the testator.^* (4) The court instructs the jury that "undue influence" is any means employed upon and with the testator by which, under the ='Coghill V. Kennedy, 119 Ala. 641, '' Chappell v. Trent, 90 Va. 849, 19 24 So. 459. S. E. 314. ''Dowie V. Sutton, 227 111. 183, 81 N. E. 395, 118 Am. St. 266. 1065 WILLS. § 926 circumstances and conditions by which the testator was sur- rounded, he could not well resist, and which controlled his voli- tion and induced him to do what otherwise would not have been done.*° (5) The court instructs the jury that the fraud and undue influence which would render a will invalid must be connected with the execution of the will, and operating at the time the will is made; and the fact that the beneficiaries of a will are those by whom the testatrix was surrounded, and with whom she stood in confidential relations, at the time of the execution of the will, or the fact that the principal beneficiaries had for years control of her estate, or the fact that the provisions of the will were for the benefit of such persons, or may seem unreasonable, yet such facts are not grounds for inferring undue influence ; and, in this case, if you believe from the evidence that the testatrix, M. P., had sufficient mind and memory, at the time of the execu- tion of the will in question, to know and understand the business in which she was engaged at the time she executed the will, and a recollection of the property she meant to bequeath, and of the persons to whom she meant to bequeath it, and that she executed the said instrument voluntarily, and of her own free will, then you should find by your verdict that the paper produced is the will of M. P.'' (6) The court instructs the jury that whether the free agency of the testator is destroyed or mastered by physical force or men- tal coercion, by threats which occasion fear, or by importunity which the testator is too weak to resist; or which extorts com- pliance in the hope of peace, is immaterial. In considering the question, therefore, it is essential to ascertain, as far as prac- ticable, the power of coercion, upon the one hand, and the liabil- ity to its influence upon the other. And, wherever, through weakness, ignorance, dependence or implicit reliance of one on the good faith of another, the latter obtains an ascendency which " Chappell V. Trent, 90 Va. 849, 19 " Pooler v. Cristman, 145 111. 405, S. E. 314. 34 N. E. 57. § 9^7 INSTRUCTIONS FORMS. IO66 prevents the former from exercising an unbiased judgment, un- due influence exists." § 927. Undue influence — Effect. — The court instructs the jury that if they find from the preponderance of the evidence that any clause of the paper purporting to be the last will of W. was procured by the undue influence, as explained in the second instruction, of the person or persons taking under said clause, or others acting in concert with such person or persons, they should find that such clause of said paper is not the true last will of W.*' § 928. Undue influence — Persons occupying confidential relations. — (1) The court instructs the jury that the exist- ence of confidential relations between the testator and principal or large beneficiaries under the will, coupled with activity on the part of the latter in and about the execution and preparation of the will, such initiation of proceedings for the preparation of the will, or participation in such preparation; employing the draftsman, selecting the witnesses, excluding persons from the testator at or about the time of the execution of the will, con- cealing the making of the will after it was made, and the like, will raise a presumption of undue influence, and cast on them the burden of showing that it was not induced by coercion or fraud on their part, directly or indirectly.^' (2) The court instructs the jury that it is not necessary that there should be confidential relations between all the beneficiaries and the testator. If there is such relation with one of a family, and the will is found to have been procured through his undue influence, it operates against all the family.'" § 929. Undue influence — Child over parent. — The court instructs the jury that if they believe from the evidence that W. E. W. was the son of the testator, W. C. W. ; that at the time of the making of the paper purporting to be his will and for several years prior thereto he sustained confidential and fiduciary "Cowgill V. Kennedy, 119 Ala. 641, '° Coghill v. Kennedy, 119 Ala. 641, 24 So. 459. 24 So. 459. ''Wills V. Tanner (Ky.), 18 S. W. °" Coghill v. Kennedy, 119 Ala. 641, 166. 24 So. 459. io67 WILLS. § 930' relations toward his father, and that he resided with his father until death, managed and controlled his business affairs, had the dose and implicit confidence of his father ; that his father looked to him for advice, counsel and direction, was controlled by him and his judgment over and above his own on business matters, and that he is the largest beneficiary in said will, and further find that the will in controversy is the result of such influence or con- trol of the said W. E. W., and not the free, voluntary, deliberate offspring of his own mind, they will find that the writing or will in controversy is not the will of the said W. C. W.°^ § 930; Undue influence — Physician over patient. — ( 1 ) The court instructs the jury that the law watches with jealousy the transactions between a physician and his patient; that such re- lations are confidential relations, and afford in the eye of the law an opportunity and a temptation on the part of the physician to take advantage thereof ; that where a physician writes a will for his patient, which provides for a benefit to the physician, the law denominates such act as a matter of fact to be a badge of fraud, which must be overcome by evidence of the absence of undue influence; that where such physician occupies also with respect to his patient a position of personal friendship and con- fidence, bestowed upon him by the patient, the presumption of the law is that such physician has exercised over his patient an undue influence ; and such presumption of law also exists, whether the relations of friendship and confidence exist or not, and such presumptions are of evidential value.*^ (2) The court instructs the jury that if they believe from the evidence that the proponent, H., was the physician of the de- cedent, T., and that while he occupied that relation toward the deceased he wrote out the paper which he now offers to the court for probate as the last will and testament of the deceased, then the presumption of law arises that the paper in question was and "' Certain instructions covering the structions, the question of undue in- same ground as the above instruction fluence. Additional instructions could were refused. It was held that even only have confused the jury. West if the refused instructions declared v. West, 144 Mo. 119, 46 S. W. 139. correct principles, the court had fully "" Hitt v. Terry, 92 Miss. 671, 46 So. submitted, in the above and other in- 829. § 93° INSTRUCTIONS FORMS. IO68 is the work and product of the will of the said proponent, J. P. H., and not the product of the will and mind of the said R. W. T. ; and this presumption is prima facie evidence of the existence of such undue influence, whether the contestants ofifer any proof of undue influence by H. over T. or not.^^ (3) The court instructs the jury that if they believe from the evidence that the proponent, H., was the medical adviser of the said decedent, T., and that at the time the said paper in evidence was drafted the said proponent, H., was the physician of the said decedent, and that the fact that said proponent was the physician of the said T., in any way influenced the said T., directly or in- directly, to make any provision in said instrument for the said H., then it is the duty of the jury to find that the said instrument is without force and effect, and the jury will thereupon find against the proponent.'* (4) The court instructs the jury that if they believe from the evidence that the proponent, H., was the physician of the de- ceased, T., and that the said H. wrote on his own typewriter the paper produced by him for probate, then the law presumes that the said instrument was procured to be signed by said H. because of an undue influence exercised over the said T. by the said H., whether the said T. was or was not then and there of sound and disposing mind and memory at the time of the signing ; and the jury will, in such event, return a verdict for contestants, unless such presumption is overcome by evidence.°° (5) The court instructs the jury that if they believe from the evidence that the proponent, H., was the physician of the de- cedent, T., and that "the deceased, T., was the patient of the said H., and that while such relationship existed the said H. agreed with the said T. to accompany him to B. to undergo a surgical operation or other treatment, and that the said H. and the said T. agreed that if thereafter the said T. should recover he would pay the said H. his expenses incurred for making the said trip and a reasonable compensation for his services, either fixed or " Hitt V. Terry, 92 Miss. 671, 46 So. " Hitt v. Terry, 92 Miss. 671, 46 So. 829. 829. "' Hitt V. Terry, 92 Miss. 671, 46 So. 829. io69 WILLS. §931 thereafter to be agreed upon between the parties, and that in the event the said T. died the compensation that the said H. should receive for his said expenses and services should be the benefits provided for him by the terms of the instrument of writing now propounded by the said H. for probate, as the true and original last will and testament of the said T., then the jury will return a verdict for the contestants-'^ §931. Undue influence — Attorney over client. — (1) The court instructs the jury that if you believe from the evidence in this case that at the time M. J. C. executed the paper dated , , purporting to be her last will, and her mind was, either from sickness, disease, age, bodily and mental decay, or over- weaning confidence, subject to the domination and control of her attorney in fact and business manager, J. H. C, or her attor- ney at law, M. F., if he was her attorney, or both of them, and that they or either of them exercised such power and control over her mind and will in the disposition of her property by said paper as to destroy her liberty and free agency and to cause such disposition of her property to be made to suit the will and wishes of said J. H. C. or M. F., or both of them, and not her own will and wishes, then and in that event also you will find for the contestants."' (2) The court instructs the jury that where a person devises his property to one who is acting at the time as his attorney, either in relation to the subject-matter of the making of the will, or generally, during that time, such devise is always carefully examined and of itself raises a presumption of undue influence. But this is by no means a conclusive presumption, but it is one that may be overcome by evidence ; and it is not necessary that that evidence shall in all cases be a positive denial of parties who are personally acquainted with the facts, but it must be such evi- dence as will lead the jury to believe that no undue influence was exerted. And if such evidence be found from the facts and cir- cumstances surrounding the making of this will as will lead you to believe that the will was made by the testatrix of her own "■Hitt V. Terry, 92 Miss. 671, 46 So. »' Allday v. Cage (Tex. Civ. App,), 829. 148 S. W. 838. § 93^ INSTRUCTIONS FORMS. IO7O free will, uninfluenced by any other person, then the fact that (name of beneficiary) was her attorney would not in any way invalidate the will. That should simply be taken into con- sideration, with all the other facts, to determine whether or not the will was, as a matter of fact, the will of the testatrix.'^ (3) The court instructs the jury that where a person writes or prepares a will for another, under which the wife of the writer takes a benefit, it is a circumstance to be considered by you, re- quiring the court and the jury to be vigilant and zealous in ex- amining the evidence in support of the instrument, and unless it appears clearly that no advantage was taken by the person so writing a will, it would be sufficient to exclude the will from probate.'* § 932. Undue influence — Over aged persons. — The court instructs the jury that when an old man eighty-five years old, of greatly impaired health and enfeebled mind, away from his next of kin, and in the custody of persons of no kin, is induced to make a will giving to such persons his entire estate, the law re- quires that such persons must clearly prove that the said will was °°The higher court, in approving tator was not at the time under the this instruction, says : "While a be- control of the legatee, it is certainly quest in favor of an attorney who not error to at least permit the jury draws a will is a circumstance arous- to draw the inference in favor of the ing suspicion and raises a presump- validity of the will from the circum- tion more or less strong that undue stances." In re Bromley's Estate, 113 influence has been exerted, yet, as Mich. S3, 71 N. W. 523. was very properly charged, the pre- °° In this case a requested instruc- sumption of the invalidity of a will tion was in the following language; made by a client to her attorney may "Where a person writes or prepares be rebutted by showing that she made a will for another, under which the her will after receiving independent wife of the writer takes a benefit, it legal advice. * * * It is also true is a suspicious circumstance requiring that the presumption of undue influ- the court to be vigilant and zealous ence arising from a will being drafted in examining the evidence in support by a beneficiary, or by one in confi- of the instrument and is sufficient to dential relations, may be overcome by exclude the will from probate unless showing that it was executed freely the suspicion is removed." The re- and under circumstances which rebut quest was modified and given in the the inference of undue influence ; and, above form. It was held that the where the proof of execution is such charge as given was a substantial as to convince the jury that the tes- compliance with the prayer and that, I071 WILLS. § 933 the free and voluntary act of the testator and an intelligent ex- pression of his wishes respecting the disposition of his prop- erty/ § 933. Undue influence — Presumptions and burden of proof. — (1) The court instructs the jury, for the proponent, that, before they can find a verdict for the contestants in this cause, they must believe from the evidence that either one of two facts is true : Either that the alleged testator, R. W. T., was at the time of the making and executing of the said alleged last will and testament of unsound mind to that degree that he was in- capable of understanding the alleged will, and did not understand it; or that he was influenced unduly by the proponent, J. P. H., to make the said will, and this undue influence must have been so strong as to make the will not the will of the said R. W. T., but in fact the will of the said J. P. H., forced upon the mind of the said R. W. T. by the preponderating and undue influence of the said J. P. H.^ (2) The court instructs the jury that if they believe from the evidence that the proponent, H., exercised any undue influence over the testamentary capacity of decedent, T., at any time be- fore or at the execution of said paper, the law presumes that such undue influence continued up to and at the time of the al- leged execution thereof.* (3) The court instructs the jury that the burden of proof is upon the proponent, H., to prove by a clear preponderance of evidence that the paper in evidence was not signed by the dece- dent, T., because of any undue influence over the said T. by the said H., and if they believe that the said proponent has not suc- cessfully carried said burden, or if they believe that the said pro- ponent, H., has not clearly overcome the presumption of undue influence, based on the relationship of the parties, prima facie existing in favor of contestants, that the said paper was signed as the law applicable to the case was ' Chappell v. Trent, 90 Va. 849, 19 correctly laid down, this was all that S. E. 314. could be required. McGowan v. Pro- ' Hitt v. Terry, 92 Miss. 671, 46 So. bate Court, 27 R. I. 394, 62 Atl. 571, 829. 114 Am. St. 52. • ' Hitt v. Terry, 92 Miss. 671, 46 So. 829. § 934 INSTRUCTIONS FORMS. 10/2 by the said T. because of the exercise over him of any undue in- fluence by the said H., or if they beHeve that the testimony upon the question of undue influence is evenly balanced, then it is the duty of the jury to return a verdict for the contestants.* § 934. Undue influence — Evidence on question. — (1) The court instructs the jury that there is no legal evidence in this case tending to prove that L. M. C. possessed any undue influence over the mind of E. K. H., as the term "undue influence" is used in the law, or that she exerted or exercised any undue influence upon him at the time when he is alleged to have executed the paper produced as his will; and in arriving at your verdict you will confine yourselves to the evidence bearing upon the question whether or not E. K. H., at the time when he is alleged to have executed said paper as his will, was of sound mind, as "sound mind" has been defined in the other instructions." (2) The court instructs the jury that direct evidence of un- due influence in procuring the execution of a will is not required to prove the existence of such undue influence. Proof of undue influence may be made by evidence of facts from which the in- ference of the existence of such undue influence may naturally and reasonably be drawn, and if you believe, from the evidence, that any fact or facts are proved from which the inference may fairly and reasonably be drawn that the alleged will and codicil of F. S. was procured by undue influence operating upon him at the time of the execution of the said alleged will and codicil, then and in that case it is your duty to find that said alleged will and codicil is not the will and codicil of F. S.® (3) The court instructs the jury that, in determining the question of the existence or nonexistence of undue influence op- erating upon the mind of the said T. at the time of the execution of the alleged paper, the jury should take into consideration the ■" Hitt V. Terry, 92 Miss. 671, 46 So. line, were improper and that "posi- 829. tive evidence" should have been sub- ° Holton V. Cochran, 208 Mo. 314, stituted therefor. The distinction was 106 S. W. 1035. held to be too refined to be tenable. ° An exception was taken to this in- Dowie v. Sutton, 227 111. 183, 81 N. struction on the ground that the E, 395, 118 Am. St. 266. words "direct evidence," in the first I073 WILLS. § 935 mental and physical condition of the said T. at and before the alleged signing thereof; that the jury are the sole judges as to whether any undue' influence was present and operated in any way upon the mind of the decedent when he signed the said paper; and in determining the question of the existence of undue in- fluence the jury may take into consideration the unnaturalness or unreasonableness of the said paper so signed by the said T., that a man weak and suffering from disease may be influenced by others who bear toward him a position of trust and con- fidence, and upon whom he may be in any way dependent, if such they believe to be the facts from the evidence in the case, any sudden change of testamentary intent or disposition, the fail- ure to afford the relatives of the said T. an opportunity to see or communicate with him before the signing of the said alleged in- strument, and any and all other facts in evidence in the case which the jury may believe in any way establishes the existence of undue influence. And the court further charges the jury that if the proponent, H., has not established to the satisfaction of the jury by a clear preponderance of the evidence the absence of all undue influence in the writing of the said paper, or in the in- serting therein of any of the provisions found therein, or in the bringing about of the signing of the said paper, or if the evi- dence on said point or points be evenly balanced, then it is the duty of the jury to return a verdict for the contestants.^ § 935. Inequality of division among objects of testator's bounty. — (1) The court instructs the jury that if a testator is given a false impression concerning persons who are the natural objects of his bounty, so that when he comes to make his will he acts upon unfounded beliefs, and gives or withholds his bounty in a manner entirely different from what his action would have been had it not been based on false beliefs and opinions delib- erately instilled into his mind for the purpose of influencing his will, and if in such case the testator is not in position, from any cause, as sickness, age, debility, concealment of the true facts, or other reason, to judge for himself, and to deliberate or resist 'Hitt V. Terry, 92 Miss. 671, 46 So. 829. 68 — Branson's Inst. § 935 INSTRUCTIONS FORMS. IO74 the influences, and the will is the result of them, it is invalid from undue influence.' (2) The court instructs the jury that where a person of sound mind or memory is not subject to constraint or undue influence he may dispose of his property by will as he sees fit. But where undue influence or want of testamentary capacity is charged, as they are in this case, all of the surrounding facts, including the bequests themselves, their propriety or impropriety, their rea- sonableness or unreasonableness, in view of the situation, rela- tions and circumstances of the testator, may be considered in determining whether the testator was, at the time of the execu- tion of the alleged will and codicil, of sound mind and memory or whether the alleged will and codicil was procured by undue influence." (3) The court instructs the jury that an owner of property desiring to dispose of the same by will has the right to distribute it according to his or her own judgment and may give nothing to children or may divide it equally among them or other rela- tives, or leave the same to others not of kin to the deceased, at his or her pleasure ; and of this right a property owner can not be deprived ; nor is a will made in execution of such purpose to be lightly set aside ; and no will is to be deemed invalid because the jury are of the opinion that a different disposition ought to have been made ; nor is the distribution made by a testator, if otherwise valid, subject to be overruled or overridden by the jury. The question of the propriety of the will in this case has nothing whatever to do with its validity, with the single exception that the jury may consider, together with all the other evidence, as a circumstance bearing on the question, whether or not the testator had sufficient mental capacity to make a will. The test of the validity of the present will, to .be determined from the evidence, is not whether, in the judgment of the jury, it is a just or proper will, but whether, at the time it was made, the testator was of 'Coghill V. Kennedy, 119 Ala. 641, 'Dowie v. Sutton, 227 111. 183, 81 24 So. 459. N. E. 395, 118 Am. St. 266. I07S WILLS. § 935 sufficiently sound mind to make a will, as explained in other in- structions/" (4) The court instructs the jury that, while inequality in the disposition of property is not, of itself, evidence of unsoundness of mind, it may be considered as a circumstance, together with all other facts and circumstances shown by the evidence bearing upon the question of the soundness or unsoundness of mind of the testatdr at the time the will was made.^^ (5) The court instructs the jury that a man's children and their descendants the law recognizes as the natural objects of his bounty, and that a disinheritance of such children or their de- scendants without any reason therefor, if shown, becomes part of the evidence, which the jury had a right to consider on the question of testamentary capacity.^'' (6) The court instructs the jury that a person competent to make a will may disinherit all of his children, and bestow all of his property upon strangers ; or he may give his property to one or more of his children and disinherit the others; or he may be- queath more of his property to some than to others of his chil- dren — and the motive for so doing can not be questioned, and the hardship of the case can have no other weight further than a circumstance tending, with other testimony, to show the in- sanity of the testator. It is a question of fact for the jury, from evidence in this case, whether L. made an unequal or unnatural disposition of his estate. If he did so, the weight to be given to that fact must be determined from a consideration of the cir- cumstances in the case. In determining the true character of the will in question, in reference to the parties to this suit, it will be proper for you to consider the pecuniary circumstances of the respective parties at the time the will was made. If, upon full consideration of all the circumstances connected with the making of this will, you find that the testator has made a rational and reasonable disposition of his property, no presumption of un- soundness of mind can be drawn from the fact that he be- "Shults V. Shults, 229 111. 420, 82 "Bradley v. Onstott (Ind.), 103 N. N. E. 312. E. 798. "Beemer v. Beemer, 256 111. 312, 100 N. E. 13S. § 935 IKSTRUCTIONS FORMS. IO76 Stowed a larger share of his property upon the defendants than upon the plaintiffs. It is proper for the jury to consider, with this part of the case, any declaration which may have been made by the testator prior to the making of the will, in regard to the disposition he intended to make of his property, and if it should be found that when he was in good health, in writing or other- wise, he declared his intention to dispose of his property sub- stantially in the same manner, it is an important fact to be con- sidered in determining the validity of this will, and as tending to its support.^^ (7) The court instructs the jury that if you find from the evidence in this case that the testator bore some ill will or dis- like toward one or more of his children, you are instructed that, if the testator was influenced thereby to make his will as he did, and at the time was of sound mind, and did so of his own free choice, his will would be valid, and should be recognized by you. Even if he did it unjustly, or with mistaken opinion as to the matters involved, this would not invalidate the will, but would rather tend to explain why he made his will as he did.^* (8) The court instructs the jury, for the proponent, that al- though they may believe from the evidence that the alleged tes- tator, R. W. T., was not prompted by natural affections when he made the alleged will, and although they may think its provisions are grossly unjust, still, if upon the evidence they believe the testator possessed capacity to make the said alleged will at the time of its execution, the alleged will must be sustained ; for the court instructs the jury that the right to dispose of one's prop- erty by will is most solemnly assured by law, and is a most valu- able incident to ownership, and does not depend upon its judi- cious use. The beneficiaries of a will are as much entitled to protection as any other property owners.^" (9) The court instructs the jury that the law of this state provides that every person of sound mind, being eighteen years of age, or more, whether married or single, has a right to make " Lamb v. Lamb, 105 Ind. 456, 5 N. " Hitt v. Terry, 92 Miss. 671, 46 So. E. 171. 829. "Ross V. Ross, 140 Iowa 51, 117 N. VV. 1105. 1077 WILLS. § 936 disposition of his or her estate by will, and so distribute his or her estate as to divest those who would otherwise inherit it as his or her legal heirs, of their interest therein. Indeed the object of the law in permitting a person to make a will is to enable a testator or testatrix to divide and distribute his or her property as to him or her may seem best, and no next of kin or relative, no matter how near they may be, can be said to have any legal or natural right to the estate of the testator or testatrix which can be asserted against the legally executed will of the latter. The law in this state has placed the estate of persons over the age of eighteen years wholly under the control of the owner and to be divided or distributed by the lat- ter as he or she may freely choose and direct in the last will and testament made by him or her. Neither husband, mother, sister, or brother has any natural right to the estate of the deceased wife, daughter, or sister which can be exerted against any disposition of said estate which said wife, daughter, or sister, if of sound mind, may choose to make by will." (10) The court instructs the jury that every person over twenty-one years of age and of sound mind is entitled under the law to make a will and to dispose of his property as he pleases and to dispose against or among his next of kin as he may choose, or if he choose he may even leave his property to strangers. ^^ § 936. Violation of natural justice in making distribution. — (i) The court instructs the jury, for the proponent, that even though it may appear to them from the evidence that the alleged last will and testament of the said R. W. T., deceased, is un- reasonable, unnatural, and unjust to his family, or some of them, or however unreasonable, unnatural, or unjust they may think the will to be, still they must uphold the will, if notwithstanding they beHeve from the evidence that the said R. W. T. had testa- mentary capacity and was not unduly influenced at the time of the execution of the will.^* "Auld V. Cathro, 20 N. Dak. 461, "Huff v. Welch (Va.), 78 S. E. 128 N. W. 1025, 32 L. R. A. (N. S.) 573. 71. " Hitt V. Terry, 92 Miss. 671, 46 So. 829. §937 INSTRUCTIONS — FORMS. 1078 (2) The court instructs the jury that in determining whether or not the paper writing in question is the true last will and tes- tament of the decedent E. H. H. the jury has the right to con- sider the nature and character of the will, and, if they find from the evidence that it is contrary to natural justice, they should take that fact into consideration along with the other facts and cir- cumstances in the case, and the testimony of the witnesses in de- termining the question of capacity/' § 937. Forged wills — Burden of proof. — The court in- structs the jury that where a will is propounded for probate, and is attacked as a forgery, the burden of proving its genuineness is upon the proponent.^" '"Huff V. Welch (Va.), 78 S. E. 573. "The charge asserts a correct legal principle. "It would be hypercrit- ical," says the Supreme Court of Ala- bama, "to hold that, because the pa- per propounded is mentioned in the charge as a "will,' it is contradictory in asserting that the paper is already proved to be the will of the decedent, and still has to be proved." Venable V. Venable, 165 Ala. 621, 51 So. 833. CHAPTER XCV. WITNESSES. Section 938. Credibility of witnesses and weight of testimony exclusively for jury. 939. Interested witnesses. 940. Prejudiced witnesses. 941. Demeanor of witnesses. 942. Means of information. 943. Employes as witnesses. 944. Husband or wife as witness for each other. 945. Expert witnesses. 946. Attorneys as witnesses. 947. Colored persons as witnesses. 948. Detectives as witnesses. 949. Confessed thieves as witnesses. Section 950. Ex-convicts as witnesses. 951. Immunity to witness. 952. Dying declarations. 953. Impeachment of witnesses. 954. Effect of impeachment. 955. Disregard of unimpeached testi- mony. 956. Disregard of testimony false in part. 957. Variance between testimony in and out of court. 958. Duty to reconcile contradictory testimony. 959. Testimony of witness by deposi- tion. § 938. Credibility of witnesses and weight of testimony ex- clusively for jury. — (1) The court instructs the jury that there is no testimony in this case tending to rebut the testimony of the witness (name of witness) that he never conveyed lot ten, in controversy in this case, to any person other than the conveyance by the deed to plaintiffs , and others, and the weight to be given his testimony is a proper question for the jury.^ (2) The court instructs the jury that the credibility of a wit- ^The original instruction, as re- quested, following the word "others," contained this clause: "and the jury would not be justified in finding to the contrary." The court struck this out and substituted the clause : "and the weight to be given his testimony is a proper question for the jury." The higher court said : "The instruc- tion as requested assumed the credi- bility of the witness ; as modified, that question was submitted to the jury, who were the judges of it, and we can not suppose that the jury mis- understood the court or believed a discrimination was intended." Davis V. Coblens, 174 U. S. 719, 19 Sup. Ct. 832, 43 L. ed. 1147. 1079 § 93^ INSTRUCTIONS FORMS. IO80 ness, and what weight should be given his testimony, is for the determination of the jury.^ (3) The court instructs the jury that, you are the sole judges of the credibility of the witnesses and the weight that should be given their testimony. With that the court has nothing to do. You may judge the credibility of a witness by the manner in which he gives his testimony, his demeanor upon the stand, the reasonableness or the unreasonableness of his testimony, his means of knowledge as to any fact about which he testifies, his interest in the case, the feeling he may have for or against the de- fendant, or any circumstance tending to shed light upon the truth or falsity of such testimony ; and it is for you at last to say what weight you will give to the testimony of any and all witnesses. If you believe that any witness has wilfully sworn falsely to any material fact in this case, you are at liberty to disbelieve the tes- timony of that witness in whole or in part, and believe it in part and disbelieve it in part, taking into consideration all the facts and circumstances of the case.^ (4) The court instructs the jury that they may believe it [the prisoner's statement] in whole or in part, or they may disregard it entirely, or they may believe it in preference to the sworn tes- timony in the case", if they see proper to do so. It is a question entirely for you to say just what weight and credit, if any, you will give to the statement.* (5) The court instructs the jury that, to enable you, in con- sidering the evidence, to separate the false from the true, you are made by the law the exclusive judges not only of the evi- dence and the weight of the evidence, but also of the credibility of the witnesses. In determining what degree of credit a wit- ness should have, the jury should bring to bear their own intelli- gent judgment and use such reasonable standards as they would apply in seeking for truth in such matters of importance where their own interests are concerned. Among other things, the jury may look to and consider any interest which a witness may have ''Venable v. Venable, 165 Ala. 621, "Woods v. State, 10 Ga. App. 476, 51 So. 833. 12> S. E. 608. = Snyder v. State, 86 Ark. 456, 111 S. W. 465. I08l WITNESSES. § 938 in the case on trial, whether he manifests any bias or prejudice for or against the accused. You may look to his manner of testifying, to the reasonableness or unreasonableness of the facts he relates, and apply such other mental tests in weighing the evi- dence as your reason and judgment dictate.^ (6) The court instructs the jury that in determining the weight to be given the testimony of a witness, you will take into con- sideration the intelligence of the witness, the circumstances sur- rounding the witness at the time concerning which he testifies; his interest, if any, in the event of the suit ; his bias or prejudice, if any ; his manner on the witness stand ; his apparent fairness or want of fairness ; the reasonableness of his testimony ; his means of observation and knowledge ; the character of his testimony — whether negative or affirmative — of any fact, and all matters and facts and circumstances shown on the trial bearing upon the ques- tion of the weight to be given to his testimony, and give each wit- ness' testimony such weight as to you it may seem fairly en- titled to.° (7) The court instructs the jury that the credibility of wit- nesses was a question for the jury, and that they had the right to determine, from their appearance on the witness-stand, their interest (if any) in the event of the suit, the temper, feeling of bias (if any had been shown), their demeanor while testifying, their apparent intelligence or lack of intelligence, their means of information, and, from all the surrounding circumstances on the ' Rouse V. State, 136 Ga. 356, 71 S. another witness who may not have E. 667. seen or heard what such witness says " The foregoing instruction was he saw or heard, and also whether given by the court in modification the positive affirmative statement of of the following requested instruc- a witness is of more or less weight tion: "In determining the weight to than the negative statement of a wit- be given to the testimony of a wit- ness." The Supreme Court of Illinois ness, you will take into consideration says : "There was no error in the the intelligence of the witness, the modification of the instruction, in that circumstances surrounding the wit- the instruction given covered all that ness at the time concerning which he was asked before the modification." testifies, and whether he had more Chicago &c. R. Co. v. Pollock, 195 or less opportunity to observe than 111. 156, 62 N. E. 831. § 93^ INSTRUCTIONS FORMS. IO82 trial, which witnesses were worthy of credit, and to give credit accordingly.' (8) The court instructs the jury that they are the exclusive judges of the weight of the testimony and the credibility of the witnesses.* (9) The court instructs the jury that you are the exclusive judges of the credibility of the witnesses and the weight to which their testimony is entitled. In passing upon these questions, you may take into consideration the interest the witness has in the suit, if any; the bias or prejudice of the witness, if any is shown; the opportunity the witness had of knowing and recollecting the facts about which he has testified; the fact whether the witness has been corroborated or contradicted by other witnesses who have testified in this cause. In case there is any apparent contra- diction in the testimony of the different witnesses who have testi- fied in this case, it is your duty to attempt to harmonize such ap- parent contradictions so as to give full weight and credit to all the witnesses ; but if you can not so reconcile such apparent con- tradictions, if any, so as to believe all the witnesses, then you must determine for yourselves what witnesses you will not be- lieve.® ( 10) The court instructs the jury that, you are the sole judges of the credibility of the witnesses, and the weight to be given to their evidence. If the evidence is conflicting, you must reconcile it if you can, consistently, with the honesty of the witnesses. In considering testimony you should not discard any without good cause for so doing. You should consider the feelings and inter- est of the witness, if he has any ; his conduct and demeanor upon the stand; his hopes and fears; the reasonableness or unrea- sonableness of his story; whether he is contradicted or corrob- orated by other evidence in the case ; his opportunities of seeing and hearing what he testifies to having seen and heard ; and you should examine all of the evidence in the light of "reason and common experience.^" 'People V. Curtright, 258 111. 430, "Lynch v. Bates, 13^ Ind. 206, 38 101 N. E. SSI. N. E. 806. 'Tucker v. Eastridge (Ind. App.). "Hatfield v. Chicago &c. R. Co., 61 100 N. E. 113. Iowa 434, 16 N. W. 336. 1083 WITNESSES. § 938 (11 ) The court instructs the jury that they are the sole judges of the credibiHty of witnesses and the weight of evidence; but you should be circumspect in the consideration of evidence given by either side which it is impossible, in the nature of things, for the other side to disprove — such as conversations or transactions with one deceased — and give to such evidence only such weight as, in view of the interest of the witness and all the circumstances, you may deem it fairly entitled to/^ (12) The court instructs the jury, for the proponent, that the jury are the sole judges of the credibility of the witnesses and the weight of evidence. It is for them to say what witness or wit- nesses have told the truth, and what fact or facts are true, from the evidence. The jury have a right to believe all the testimony of any witness or witnesses, or to reject it all, or they have a right to believe a part of the testimony of a witness, or reject a part, according as they may believe the same to be true or untrue. But they are not authorized to arbitrarily reject the testimony of any witness, or to disbelieve the testimony of any witness in whole, simply because they believe a part of the testimony of the said witness to be untrue ; but, if the jury believe any witness has wilfully and corruptly sworn falsely to a material fact, they have then the right to reject the testimony of that witness al- together.^^ (13) The court instructs the jury, for the defendant, that the consideration of the evidence in this case, and determining the weight thereof, and whether the witnesses should be believed or not, is exclusively the province of the jury, and in weighing the evidence in this case, and in saying whether a witness who has testified in this case should be believed, the jury have a right to take into consideration what interest, if any, such witness may have in the case ; and if the jury believe from the evidence that any witness in this case has wilfully and corruptly sworn falsely as to any material thing or matter inquired of on the trial of this case, the jury have a right to disbelieve and disregard the whole and entire evidence of such witness.^* " Meyer v. Blakemore, 54 Miss. 570. '^ Turner v. State, 95 Miss. 879, 50 " Hitt V. Terry, 92 Miss. 671, 46 So. So. 629. 829. § 939 INSTRUCTIONS FORMS. IO84 (14) The court instructs the jury that the preponderance of evidence in a case is not alone determined by the number of wit- nesses testifying to a particular fact or state of facts. In de- termining upon which side the preponderance is, you should take into consideration the opportunities of the witnesses for seeing or knowing the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proven or admitted on the trial, and, from all these circumstances, determine upon which side is the weight or preponderance of the evidence.^* (15) The court instructs the jury that the credibility of wit- nesses is a question exclusively for the jury to determine. In de- termining the weight to be given to the testimony of the several witnesses the jury should take into consideration their interest in the result of the case, if any such is proved ; their conduct and demeanor while testifying; their apparent fairness or bias if such appears; their opportunities for seeing or knowing the things about which they testify; the reasonableness or unreasonable- ness of the story told by them, and all the evidence and facts and circumstances proved tending to corroborate or contradict such witness, if any such appears.^^ §939. Interested witnesses. — (1) The court instructs the jury that while the plaintiff is allowed to testify in this case in his own behalf, yet in considering his testimony, and the weight to be given to it, the jury have a right to, and should, take into consideration the fact that he is the plaintiff in this suit and is interested in the result thereof and should judge the weight of his testimony by the same tests applied to other witnesses.^" (2 ) The court instructs the jury that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing his evidence, to determine how "Hoskovec v. Omaha St. R. Co., '"Chicago v. Hill, 251 111. 502, 96 85 Nebr. 295, 123 N. W. 305. N. E. 223 ; Chicago City R. Co. v. "= Nicholson V. 'State, 18 Wyo. 298, Olis, 192 111. 514, 61 N. E. 459. 106 Pac. 929. I08S WITNESSES. § 939 much credence is to be given to it, and to take into considera- tion that he is the plaintifif and interested in the result of the suit." (3) The court instructs the jury that in determining the weight to be given the testimony of the different witnesses, you should take into account the interest or want of interest they have in the case, their manner on the stand, the probability or improb- ability of their testimony with all other circumstances before you which can aid you in weighing their testimony. The defendant has testified as a witness and you should weigh his testimony as you weigh that of any other witness. Consider his interest in the result of the case, his manner and the probability or improb- ability of his testimony.^^ (4) The court instructs the jury that testimony of witnesses who have no interest in the result of the suit, of equal credibility otherwise, is entitled to more weight than the testimony of in- terested witnesses.^' (5) The court instructs the jury that, you are the sole judges of the credibility to be given to the testimony of each and every witness who has testified before you. You ought not to arbitra- rily disregard the testimony of any witness, but give to the testi- mony of each and every witness such consideration as, in the light of all the facts and circumstances shown by the evidence before you, you think the same is fairly entitled to. And in this connec- tion it is proper to consider the interest that a witness may be " The foregoing instruction was re- 48 N. E. 1000. See also Chicago &c. quested and refused and no other in- R. Co. v. Burridge, 211 111. 9, 71 N. struction covering this point was E. 838. given. There was a sharp conflict in '^"This instruction," says the court, the evidence on the question of negli- upon review, ''appears to us to have gence and the plaintiff's testimony stated the law correctly on the gen- was contradicted by that of several eral subject of the credibility of wit- other witnesses. The Supreme Court nesses and was pertinent to much of of Illinois held that, in view of such the evidence which the jury had to conflict, it was important that the consider in making up their verdict." jury be correctly instructed ; that the Anderson v. State, 104 Ind. 467, 4 N. instruction requested was unobjection- E. 63. able, and that the trial court's refusal ^ Bonnell v. Smith, S3 Iowa 281, S to give it was error. West Chicago N. W. 128 (not erroneous but giving St. R. Co. v. Dougherty, 170 111. 379, not approved). § 940 INSTRUCTIONS FORMS. IO86 shown to have in the result of the case, his apparent capacity and understanding, the probabihty or improbabihty of his statement, his manner of giving his testimony, and all the other facts and circumstances connected therewith.^" (6) The court instructs the jury that you are to weigh all of this evidence, gentlemen, in every way, and in weighing it you have a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand and their demeanor, the interest that they may have shown, or bias, upon the stand, the means they have of knowing that to which they testify, their character and reputa- tion in weighing this testimony so as to arrive at the truth of what this matter is; take the case, gentlemen.^^ (7) The court instructs the jury that the defendant, of course, is interested in swearing, if there is any such thing as honor or moral right that would excuse falsehood, not only to that which would relieve himself, but will protect his paramour.^^ (8) The court instructs the jury that in judging the cred- ibility of the plaintiff's evidence, you may properly consider the interest plaintiff has in the result of his trial, the temptation to which he is subjected, under the circumstances, to color his tes- timony favorably to himself, and you will consider eveiything bearing on that subject, and give to the evidence of the plain- tiff such weight only as, in your judgment, it is entitled to, and a like test should be applied to the evidence of each of the wit- nesses who has testified in this case.^^ § 940. Prejudiced witnesses. — The court instructs the jury that if any of the state witnesses have exhibited bias against the defendant, or anger, and satisfied you that they had not testified truly, and were not worthy of belief, and you thought their tes- timony should be disregarded, you may disregard it altogether." "'Wheeler v. State, 79 Nebr. 491, 148 Wis. 573, 134 N. W. 141; Blank- 113 N. W. 253. avag v. Badger Box &c. Co., 136 Wis. "■ Herndon v. Southern R. Co., 162 380, 117 N. W. 852. N. Car. 317, 78 S. E. 287. ^ Burkett v. State, 154 Ala. 19, 45 ''Cornelius v. Hambay, 150 Pa. 359, So. 682; Stinson v. State (Ala. App.), 24 Atl. 515. . 64 So. 507. ''Vogel V. Herzfeld-Phillipson Co., 1 087 WITNESSES. § 941 §941. Demeanor of witnesses. — (1) The court instructs the jury that they should believe the witness or witnesses whom they consider most worthy of belief, and that, in order to ar- rive at a conclusion as to which are most worthy of belief, they may look to the manner of the witnesses while testifying, their means of knowledge as disclosed by the evidence, and their bias or prejudice, if any has been shown by the testimony, and should see to what extent they have been impeached or corroborated, if at all.=== (2) The court instructs the jury that, the actions, appear- ance, manner of testifying and the circumstances that attach to and surround a witness, together with his interest, and con- sistency or inconsistency of statements, often determine, and properly, what weight a jury ought to give to such testimony. In this case, the defendant W. is a competent witness in his own behalf, his interest in the result going only to his credibility ; and his testimony is to be considered the same as that of any other witness under the rule above stated.^* (3) The court instructs the jury that you are the exclusive judges of the evidence and of the credibility of the witnesses. You will take the law as given you in the instructions of the court. , In weighing and reconciling the testimony, you should look to the manner and demeanor of the witness in testifying; to his or her readiness and willingness, or tardiness and unwilling- ness, in answering upon the one side or the other, if such be the fact ; to the interest or want of interest of any witness in the case ; to whether the witness has any bias or feeling, or not ; to his or her relationship to any of the parties in interest ; to the witness' means of knowledge of the facts he testifies to and professes to know and understand; to his or her chance or opportunity for knowing the facts ; to the reasonableness or unreasonableness of the story told ; to its probability or improbability ; to whether the witness has made contradictory statements, or not, about ma- terial matters involved in the case; and, having thus carefully considered all the matters, the jury must fix the weight and value '^ Central R. &c. Co. v. Attaway, (not erroneous in view of other in- 90 Ga. 656, 16 S. E. 956. structions). "" Woollen V. Whitacre, 91 Ind. 502 § 942 INSTRUCTIONS FORMS. I088 of the testimony of each and every witness and of the evidence as a whole.^^ (4) The court instructs the jury that it is their duty, in de- termining the facts, to determine, from the appearance and de- meanor of the witnesses, their manner of testifying, and their apparent candor and fairness or lack of it, their bias or prejudice for or against the defendant, if any is shown, their apparent in- telligence or lack of it, their interest in the result of the case, if any, and all their surrounding circumstances, the witness or wit- nesses most worthy of credit, and give credit accordingly.^^ § 942. Means of information. — (1) The court instructs the jury that in determining the credibility of the witnesses you have a right to take into consideration the means of information of the several witnesses.^' (2) The court instructs the jury that for the purpose of de- termining the weight to be given to the testimony of the witnesses who have testified to the value of the plaintiff's land, you are authorized to take into consideration the personal knowledge of said witnesses of said land or their lack of personal knowledge thereof at the time of, and before the time of, the establishment of the said ditch or drain, and to give to the testimony of both classes of witnesses the weight you deem it to be entitled to.^" (3) The court instructs the jury that in determining upon which side the preponderance of the evidence is, the jury may take into consideration the opportunities of the several witnesses for seeing and knowing the things about which they testify; their conduct and demeanor while testifying; their interest if any, or want of interest, if any, in the result of the suit; the probability, " Holton V. Cochran, 208 Mo. 314, means of information are superior." 106 S. W. 1035. This instruction was refused and the ^ State V. Hoshor, "26 Wash. 643, instruction as given in the foregoing (>! Pac. 386. form was substituted for it by the * The following instruction was re- court. It was held that the substituted quested in this case : "The court in- instruction embodied in it all that was structs the jury that where witnesses material in the refused instruction, are otherwise equally credible, and Christy v. Elliott, 216 111. 31, 74 N. E. their testimony otherwise entitled to 1035, 1 L. R. A. (N. S.) 215, 108 Am. equal weight, greater weight and St. 196. credit should be given to those whose °° It was complained that this in- 1089 WITNESSES. § 943 or improbability of the truth of their several statements in view of all the other evidence and other facts and circumstances appear- ing on the trial; and from all the circumstances determine the weight or preponderance of the evidence. The jury are the sole judges of the weight of the evidence and the credibility of the witnesses.^^ §943. Employes as witnesses. — (1) The court instructs the jury that, while they are the judges of the credibility of the witnesses, they have no right to disregard the testimony of an un- impeached witness sworn on behalf of the defendant simply be- cause such witness was or is an employe of the defendant, but it is the duty of the jury to receive the testimony of such witness in the light of all the evidence, the same as they would receive the testimony of any other witness, and to determine the cred- ibility of such employe by the same principles and tests by which they would determine the credibility of any other witness.*^ (2) The court instructs the jury that you may take the testi- mony of these railroad men ; you may take their appearance upon the stand; you may take into consideration any interest which they, might have that would in any way influence their testimony here, but no inference unfair to men should be drawn because they are in the employ of the railroad company; you will take into consideration the testimony of the plaintiff — and then weigh up the testimony on both sides, and say where, in your judgment, struction "made an invidious distinc- the nature of the testimony in the tion between the witnesses of the re- manner above indicated. The prov- spective parties." The court, upon re- ince of the jury was not thereby in- view, says, however : "We think the vaded." Hickey v. Webster County, instruction under this record is not 148 Iowa 337, 127 N. W. 658. amenable to the criticism made. The " Kansas City v. Bradbury, 45 Kans. fact that certain witnesses testified 381, 25 Pac. 889, 23 Am. St. 731. hypothetically, and not from personal " The trial court modified the fore- knowledge, was a proper matter for going instruction by adding the words, the consideration of the jury, and the "in the employ of an individual liti- trial court might well have given the gant." Upon review, it was held that usual instruction on the subject of the modification was uncalled for and opinion evidence based upon hypo- should not have been made. Cicero thetical questions. The trial court did &c. R. Co. v. Rollins, 195 111. 219, 63 not do this, but directed the atten- N. E. 98. tion of the jury to the distinction in 69 — Branson's Inst. § 944 INSTRUCTIONS FORMS. lOQO the truth lies, and what your duty would be in giving weight to the testimony.^* (3) The court instructs the jury that they may infer that, if a witness is in the employ of a litigant and receives a salary from him, that fact may have some bearing upon the testimony.^* § 944. Husband or wife as witness for each other. — ^The court instructs the jury that under the law of this state [Illinois] a husband is a competent witness to testify in behalf of his wife in a suit brought by the latter for personal injuries alleged to have been sustained by the wife. You are instructed that if the testinfony of the husband appears to be fair, is not unreasonable and is consistent with itself, and the witness has not been in any manner impeached, thep yoii have no right to disregard the tes- timony of such a witness merely from the fact that he is related by marriage to the plaintiff in the case.^° § 945. Expert witnesses. — (1) The court instructs the jury that testimony has been given by certain witnesses who, in law, are termed experts, and in this connection I would suggest to you, that, while in cases such as the one being tried, the law receives the evidence of men, expert in certain lines, as to their opinions derived from their knowledge of particular matters, the ultimate weight which is to be given to the testimony of expert witnesses "'"We see nothing objectionable in °° While the practice of singling out this language, taken as a whole," says a particular witness is condemned, the Supreme Court of Michigan, still, where "it must be apparent to "None of the cases cited by defend- the jury that the law stated in the ant's counsel supports their contention instruction could apply to but one that the circuit judge was in this in- witness in the case, no matter how struction invading the province of the general its statements were, and no jury. It is true the jury were told difference how the instruction was that in weighing the testimony of the worded, the jury would know that it witnesses, the interest of the witnesses applied to him alone, and where, might be considered, but in the same under such circumstances, the wit- connection the court cautioned them ness is not named in the instruction, against drawing an unfair inference the fact that he or she is identified based upon the fact that these wit- in the instruction does not constitute nesses were ii;i the defendant's em- reversible error." North Chicago St. ploy." Lovely v. Grand Rapids &c. R. Co. v. Wellner, 206 111. 272, 69 N. R. Co., 137 Mich. 653, 100 N. W. 894. E. 6. "* Bartholdi v. Hickson, 136 N. Y. S. 92. IO9I WITNESSES. §947 is a question to be determined by the jury, and there is no rule of law which requires you to surrender your own judgment to that of any person testifying as an expert witness, or to give control- ling effect to the opinion of scientific witnesses ; in other words, the testimony of an expert, like that of any other witness, is to be received by you and given such weight as you think it is prop- erly entitled to; but you are not bound or concluded by the tes- timony of any witness, expert or other.'* (2) The court instructs the jury that before the opinion of the expert has any value whatever, the jury must first find to be true the facts on which such opinion is based.'' § 946. Attorneys as witnesses. — The court instructs the jury that an attorney is a competent witness for his client on the trial of a case, and the testimony of such witness shall not be dis- regarded by you simply because the witness is an attorney testi- fying in favor of his own client. In such a case you are the judges of the weight and credit to which such testimony is en- titled.'' § 947. Colored persons as witnesses. — The court instructs the jury that, some argument has been made as to the color of the witnesses. It is imrriaterial whether the witnesses were white or black; and, if you believe beyond a reasonable doubt that black witnesses are telling the truth, it is as much your duty to con- vict on their evidence as though they were white.'" "Moore v. Chicago &c. R. Co., 151 fendant testified in behalf of his Iowa 353, 131 N. W. 30. client. "The court did not name either " Patterson v. Springfield Trac. Co. of these witnesses in its instructions. (Mo. App.) 163 S. W. 955. Neither was their testimony stated ^ It was assigned as error in this or commented upon. * * * The case that the trial court, by the fore- additional instructions on the subject going instruction, singled out the tes- did not establish any different stand- timony of one of defendant's attor- ard for weighing the testimony of neys and gave undue prominence to an attorney than is applicable to other such witness. The higher court held witnesses." King v. Hanson, 13 N. that error was not well assigned. Dak. 85, 99 N. W. 1085. One of the attorneys for the plain- "Dolan v. State, 81 Ala. 11, 1 So. tiff testified in behalf of his client 707. and one of the attorneys for the de- § 948 INSTRUCTIONS FORMS. IO92 §948. Detectives as witnesses. — (1) The court instructs the jury that, while you may consider the witness' manner of testifying, and his interest or want of interest in the case, yet it is entirely legitimate for the city of D. to employ detectives to run down and ascertain those who violate the law.*" (2) The court instructs the jury that, when one acts in the capacity of a private detective or public officer, it becomes the duty of the jury to scrutinize the testimony of such person, and to say whether or not the testimony of that person so acting is biased, whether the interest he serves has influenced him to an extent that would reflect upon or affect his testimony.** § 949. Confessed thieves as witnesses. — The court in- structs the jury that under the circumstances of the case, it would be difficult for the plaintiff to prove the precise number or value of the articles stolen. You must get at that from the tes- timony of these two men, who admit that they were thieves. They have been indicted and pleaded guilty as thieves in the criminal court. Of course, the testimony of a particeps criminis is always to be received with caution. Sometimes, when a man gets into trouble himself, he wants to involve others. Such tes- timony is to be received with suspicion, but not rejected. It must be considered by the jtlry along with other testimony.*^ § 950. Ex-convicts as witnesses. — The court instructs the jury that the proclamation of the governor [granting a pardon to plaintiff who had been convicted of a felony] renders the witness a competent witness, leaving his credibility to be determined by you from all the facts and circumstances in evidence.*^ § 951. Immunity to witness. — ^The court instructs the jury that if you believe from the evidence that the witness F. P. was induced to become a witness and testify in this case by any prom- ise of immunity from further punishment, or by any hope held out or entertained by him that it would go easier with him, if "Watts V. State, 9 Ga. App. 500, "Rohn v. Borland (Pa.), 7 Atl. 71 S. E. 766. 171. " State v. Boynton, ISS N. Car. 456, *■ Costley v. Galveston City R. Co. 71 S. E. 341. (Tex.), 8 S. W. 114. 1093 WITNESSES. § 954 any there were, in case he implicated some one else in the crime, then the jury should take such facts into consideration in deter- mining the weight which ought to be given to his testimony thus obtained and given under the influence of such promise or hope.** §952. Dying declarations. — The court instructs the jury that the dying declaration, as evidence, should be considered un- der the same rules that govern in determining the credibility of witnesses who testify from the stand.*" §953. Impeachment of witnesses. — (1) The court in- structs the jury that a witness can be impeached by general bad "moral" character.*" (2) The court instructs the jury that when it is successfully proven that the general reputation of a witness for general moral character is bad, the witness is impeached, and the jury will be warranted in disregarding the testimony of such a witness as unworthy of belief. The defendants have been witnesses in their own behalf, and are subject to be impeached, the same as any other witness.*' (3) The court instructs the jury that, when a witness has been impeached by contradictory statements previously made, he may be restored by proof of general good character.** § 954. Effect of impeachment. — ( 1 ) The court instructs the jury that, if they believe that the general reputation of any witness in this case has been impeached for truth, they may re- ject his testimony entirely.*" (2) The court instructs the jury that while it is for them to determine the credit to be given the testimony of each and every " State V. Chandler, 57 Ore. 561, principle. "It does not authorize the 112 Pac. 1087. capricious rejection of testimony, nor * Robinson v. State, 10 Ga. App. does it assert that if there is evidence 462, 1Z S. E. 622. tending to impeach, etc., but if the " Sparks V. Bedford, 4 Ga. App. 13, general reputation of the witness has 60 S. E. 809. been impeached; that is, if the evi- ■" State V. Haberle, 72 Iowa 138, Zi dence justifies the finding that his N. W. 461. character is such that he is unworthy * Gordon v. State, 10 Ga. App. 35, of belief — in other words, success- 72 S. E. 544. fully impeached." Venable v. Ven- "The charge lays down a correct able, 165 Ala. 621, 51 So. 833. § 954 INSTRUCTIONS FORMS. IO94 witness, yet when a witness has been successfully impeached as to absolutely establish in the minds of the jury his unworthiness of credit, as well as where a witness swears wilfully and know- ingly falsely, his testimony in each and both of these cases ought to be disregarded unless corroborated by circumstances, or other unimpeachable evidence.^" (3) The court instructs the jury that, under that rule, gentle- men, you look and see whether any witness in the case has or has not been impeached. If a witness has been so successfully im- peached and has not been corroborated in one of the ways I have explained to you, it would be your duty to disregard the testi- mony of that witness ; but whether a witness has been so success- fully impeached, and, if successfully impeached, whether such witness has been corroborated, and what weight you will give to the testimony of that witness under all the facts and circumstances of the case, is a matter for you to determine.^^ (4) The court instructs the jury that a witness may be im- peached by proof of contradictory statements as to matters that are material to the issues on trial. The general rule is that, when a, witness has been successfully impeached, he should not be be- lieved. If such witness be corroborated — that is, if there be other evidence in the case sustaining what the witness said — such wit- ness may be believed. In all attempts at impeachment it is for you, the jury, to say whether or not such attempt has been suc- cessful.^' (5) The court instructs the jury that if they believe, from the evidence, that the witness C. G. has been successfully im- peached by reason of bad reputation for truth and veracity or by reason of statements made out of court conflicting with state- ments made by him on the witness-stand in this case, they will be justified in disregarding his entire testimony, except in so far as he has been corroborated by other credible evidence or by facts and circumstances proved on the trial.''^ ™ Rouse V. State, 136 Ga. 3S6, 71 ^ This instruction, refused by the S. E. 667. trial court, should have been given. "'Arnold v. State, 131 Ga. 494, 62 The instruction was not objectionable S. E. 806. on the ground of its singling out a " Atlanta &c. R. Co. v. Hudson, 2 particular witness, as the witness Ga. App. 352, 58 S. E. 500. named was the only one whose tcs- 1095 WITNESSES. § 956 (6) The court instructs the jury that if you find a witness to have been successfully impeached, you may entirely disregard his testimony, except in so far as he is corroborated by other credible testimony, or by facts or circumstances satisfactorily proved on the trial.''* § 955. Disregard of unimpeached testimony. — The court instructs the jury that they have no right to disregard the tes- timony of a witness where such testimony is not contradicted and such witness has not been impeached.^' § 956. Disregard of testimony false in part. — (1) The court instructs the jury that, if you believe, from the evidence in this case, that the witness B. has wilfully and corruptly sworn falsely as to any material fact in this case, you may in your discretion disregard his testimony entirely.^" (2) The court instructs the jury that if you are reasonably satisfied from the evidence that the witness B. wilfully swore falsely that he was not foreman of the mines in the absence of the superintendent, F., then you may disregard the testimony of B. entirely." (3) The court instructs the jury that if they are reasonably satisfied from the evidence that any one or more witnesses in the case wilfully swore falsely in any material particular in the case, then the jury are authorized to reject the testimony of that wit- ness or those witnesses entirely.^' (4) The court instructs the jury that, if you shall find that the plaintiff has wilfully misstated any fact concerning which she has been interrogated, then her testimony in other respects should timony it was sought to impeach, it is their duty to consider his testi- Stevens v. People, 215 111. S93, 74 N. mony and give it suchweight, if any, E. 786. as it is entitled to. They should not "Robertson v. Monroe, 7 Ind. App. arbitrarily disregard it." Moreover, 470, 33 N. E. 1002 (not erroneous the instruction did not invade the when considered in connection with jury's province. Schwamb Lumber other instructions). Co. v. Schaar, 94 111. App. 544. ■"It was held that this instruction, ""Alabama Steel &c. Co. v. Griffin, refused by the trial court, should have 149 Ala. 423, 42 So. 1034. been given. "While it is true," says "" Merriweather v. Sayre Min. &c. the reviewing court, "that the jury Co., 161 Ala. 441, 49 So. 916. might disbelieve a witness who has '" Kress v. Lawrence, 158 Ala. 652, not been contradicted nor impeached, 47 So. 574. § 95^ INSTRUCTIONS FORMS. IO96 be distrusted, and the jury may in such case disregard the whole of her evidence. So, also, if you shall find that any witness ex- amined upon behalf of the plaintiff has wilfully misstated any fact concerning which he has been interrogated, then the testi- mony of such witness in other respects should be distrusted, and the jury may in such case disregard the whole of the evidence of such witness. Where a witness gives wilfully false testimony, the jury should treat all his testimony with distrust and suspicion, and reject all, unless convinced, notwithstanding the base char- acter of the witness, that he has in other particulars sworn to the truth.'* ( 5 ) The court instructs the jury that, one of the modes of im- peaching a witness is by proof of contradictory statements pre- viously made by him as to matters relevant to his testimony and to the case. When a witness is successfully contradicted as to a material matter, his credit as to other matters is for the jury. But if a witness swear wilfully false, his testimony ought to be disregarded entirely, unless corroborated by circumstances, or other unimpeached evidence. It is for the jury to determine the credit to be given his testimony where impeached for general bad character or for contradictory statements out of court. You will understand now, where an attempt is made to impeach a witness by proof of contradictory statements made out of court, and that is one of the modes of impeachment under the law, it is for the jury to say whether or not that attempt has been success- ful. If the jury believe that the attempt has been successful, the jury ought to disregard the testimony of the witness, if you be- lieve that the witness was impeached for contradictory statements made out of court. If the jury do not believe that the attempt has been successful, why then the jury will not regard the evidence in the case so far as it relates to the impeachment of the witness."" (6) The court instructs the jury that, if you believe from the entire testimony, and from your inspection of the premises, that any witness has magnified or exaggerated the value of the land taken, or the damages to the land not taken, on account of his interest in the suit, or his prejudice, or want of knowledge or " O'Rourke v. Vennekohl, 104 Cal. ™ Dawson v. State, 2 Ga. App. 637, 254, 37 Pac. 930. 58 S. E. 1065. 1097 WITNESSES. §95^^ experience or truthfulness, then you have the right, and it is your duty, to disregard the evidence of such witness, in so far as the same is unjustly magnified or unjustly increased, either as to the value of the land taken or the damages to the property of the defendant not taken."^ (7) The court instructs the jury that they are not bound to believe anything to be a fact simply because a witness has stated it to be so, provided the jury believe, from all the testimony, that ^uch a witness is mistaken or has testified falsely.''^ (8) The court instructs the jury that it is a principle of law that if you believe, from the evidence, that any witness has wil- fully and knowingly sworn falsely to any material element in the case, or that any witness has wilfully and knowingly exaggerated any material fact or circumstance for the purpose of deceiving, misleading or imposing upon the jury, then the jury have a right to reject the entire testimony of such witness unless corroborated by other evidence which you believe, or by facts and circumstances appearing in the case.°^ (9) The court instructs the jury that if they believe, from the evidence, that any witness has wilfully and knowingly sworn falsely to any material point in the case, they have the right to reject the entire testimony of such witness or witnesses in mat- ters where their testimony is not corroborated by other witnesses whom they believe to be credible or facts and circumstances ap- pearing in evidence.** (10) The court instructs the jury that they will be justified in disregarding the testimony of witnesses who wilfully swore falsely."^ (11) The court instructs the jury that, if you believe from the evidence in this case that any witness sworn in the case has in- tentionally or wilfully sworn falsely to any material fact in issue in this case, then you are at liberty to disregard the whole '^ Kiernan v. Chicago &c. R. Co., " Chicago City R. Co. v. Allen, 169 123 111. 188, 14 N. E. 18. 111. 287, 48 N. E. 414; Chicago City "'Devaney v. Otis Elev. Co., 251 R. Co. v. Olis, 192 111. S14, 61 N. E. 111. 28, 95 N. E. 990. 459. "^ Chicago City R. Co. v. Olis, 192 '"' Grand Rapids &c. R. Co. v. Mar- Ill. 514, 61 N. E. 459. tin, 41 Mich. 667, 3 N. W. 173. § 95^ INSTRUCTIONS FORMS. IO98 of the evidence of such witness; and you are further instructed that you are the sole judges of the weight of the evidence and credibiHty of the witnesses ; and in considering what, weight and credit you shall give to the testimony of any witness you will take into consideration the interest of such witness in the result of the trial, his attitude toward the trial, and his conduct upon the witness-stand, and you will take into consideration all of the other facts and circumstances given in evidence in the case."" (12) The court instructs the jury that you are the sole judges of the credibility of the several witnesses that have appeared be- fore you, and of the weight or importance to be given to their respective statements of testimony, and if you believe from all that you have seen and heard at the trial that any witness has wilfully sworn falsely as to any of the facts mentioned in the instructions herein as bearing on 'the plaintifif's alleged defense thereto, then you are at liberty to disregard entirely the testi- mony of said witness.^^- (13) The court instructs the jury that, if you believe any wit- ness has wilfully testified falsely to any material fact in this case in respect to which such witness could not be presumed liable to mistake, you may give no credit to any alleged fact depending upon the statement alone of any such witness. And you are fur- ther instructed that, if you believe from the evidence that the witness C. J. is a person of bad reputation for truth and veracity in the neighborhood where he resides, then as a matter of law that fact tends to discredit his testimony, and as jurors you may entirely disregard it, except so far as he is corroborated by other credible testimony, or by facts and circumstances proved on the trial."' (14) The court instructs the jury that the testimony of one credible witness is entitled to more weight than the testimony of many others, if as to those other witnesses the jury have reason to believe, and do believe, from the evidence and all the facts be- fore them, that such other witnesses have knowingly testified un- " Wray v. Wabash R. Co., 159 Mo. "' Johnson v. Johnson, 81 Nebr. 60, App. 616, 141 S. W. 449. 115 N. W. 323. "O'Connell v. St. Louis Cable R. Co., 106 Mo. 482, 17 S. W. 494. 1099 WITNESSES. § 957 truthfully, and are not corroborated by other credible witnesses, or by circumstances proved in the case. It is the duty of the jury to consider the whole of the evidence and to render their verdict in accordance with the weight of all the evidence in the case."' (15) The court instructs the jury that if they find that the plaintiff had testified falsely about his injury or physical condi- tion, they might consider it upon the question of the truth of his other testimony.'" (16) The court instructs the jury that, if they beheve from all the evidence that any witness who has testified in this case has knowingly and wilfully testified falsely to any material fact in this case, they may disregard the whole testimony of such wit- ness, or they may give such weight to the evidence of such wit- ness on other points as they may think it entitled to. The jury are the exclusive judges of the weight of testimony.'^ - (17) The court instructs the jury that, the men who were on that tug at the time have all been witnesses, and they deny any knowledge of its going through, and it necessarily follows, it seems to me, that, if the tug did go through, some of those men have either forgotten the circumstance, or have wilfully sworn falsely in reference to it.'^ (18) The court instructs the jury that if you find that any witness has wilfully testified falsely as to any material fact, you are at liberty to disregard all the testimony of such witness, ex- cept as it may be corroborated by other credible evidence in the case.'^ § 957. Variance between testimony in and out of court. — (i) The court instructs the jury that if they believe from the evidence in this case that plaintiff's husband, C. C. C, has made °° Kemp V. Slocum, 78 Nebr. 440, " The instruction requested read : 110 N. W. 1024. "Except as it may be corroborated by ™ "The court might properly have other evidence in the case." The given this instruction, but it was not word "credible" should be inserted, error to refuse it." Doyle v. Me- Blankavag v. Badger Box &c. Co., lendy, 83 Vt. 339, 75 Atl. 881. 136 Wis. 380, 117 N. W. 852. See "Cobb V. Dunlevie, 63 W. Va. 398, also State v. Raice, 24 S. Dak. Ill, 60 S. E. 384. 123 N. W. 708. "Wentworth v. Abbetts, 78 Wis. 63, 46 N. W. 1044. §957 INSTRUCTIONS FORMS. I ICO a contradictory statement as to any material facts in evidence in this case, the jury may consider such contradictory statement in determining what weight they will give the testimony of said C. C. C." (2) The court instructs the jury that if any witness in the case has at another time and place made statements, material to the issues in this case, at variance with his testimony while on the witness-stand before you, then you are at liberty to disregard the whole of such witness' testimony except in so far as he is corroborated by other credible evidence/^ (3) The court instructs the jury that if you find and believe from the evidence that the defendant made any statement or statements in relation to the homicide charged in the information as to how said homicide was committed, you must consider such statement, or statements, altogether. The defendant is entitled to the benefit of anything he said for himself, if true, and the state is entitled to the benefit of anything he said against him- self in any statement, or statements, proven by the state. What the defendant said against himself the law presumes to be true, because said against himself. What the defendant said for him- self the jury are not bound to believe, because it was said in a statement or statements proven by the state, but the jury may be- lieve or disbelieve it as it is shown to be true or false by the evi- dence in the case. It is for you to consider, under all the evi- dence or circumstances, how much of the whole statement or statements of the defendant proven by the state you, from the evidence, may deem worthy of belief.'* (4) The court instructs the jury that, a witness may also be impeached by evidence that he has made, at other times, state- " Birmingham R. &c. Power Co. v. rated by other witnesses. This rul? Cockrum (Ala.), 60 So. 304. is kindred to that which authorizes " In approving this instruction, the a jury to disregard all the testimony Supreme Court of Jowa says: of a witness who knowingly testi- "Surely, if the discrepancies in the fied falsely as to one or more mate- statements of a witness were of such rial matters." Blotcky v. Caplan, 91 a character as to satisfy the jury Iowa 352, 59 N. W. 204. that he was unworthy of belief, they " State v. Wilson, 223 Mo. 173, 122 were at liberty to disregard the whole S. W. 671. of his testimony except as corrobo- IIOI WITNESSES. §958 ments inconsistent with his present testimony; so if you find that any witness in this case made statements, either orally or in writing, inconsistent with his present testimony, you may con- sider said witness impeached, and be at liberty to disregard his testimony, except in so far as he is corroborated by other credible testimony." §958. Duty to reconcile contradictory testimony. — (1) The court instructs the jury that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and where the testimony is conflicting it is your duty to reconcile it, if you can, upon the theory that such witnesses have sworn to the truth ; but, if you can not do so, then you are privileged to dis- card so much or such parts of it as you deem unworthy of credit.'* (2) The court instructs the jury that you are the exclusive judges of the credibility of the witnesses, and it is your duty to reconcile any conflict that may appear in the evidence, as far as may be in your power, upon the theory that each witness has sworn to the truth. When this can not be done, you may con- sider the conduct of the witnesses upon the stand, the nature of the evidence given by them, how far they are corroborated or contradicted by other testimony, their interest, if any, in the cause, their relation to the parties, and such other facts appearing in the evidence as will, in your judgment, aid you in determining whom you will believe, and you may also, in considering whom you will or will not believe, take into account your experience and rela- tions among men.'* (3) The court instructs the jury that if they are unable to reconcile apparently-conflicting testimony, they must determine what portion of it was true and what false by the application of the test given, and all other tests within their skill and power.*" (4) The court instructs the jury that you are the judges of the credibility of each and every witness, and you should give the " State V. Chandler, 57 Ore. 561, 112 Ind. 314, 41 N. E. 448, 33 L. R. A. Pac. 1087. 395. "Atlantic Coast Line R. Co. v. ™ Norris v. Cargill, 57 Wis. 251, 15 Beazley, 54 Fla. 311, 45 So. 761. N. W. 148. "Jenney Elec. Co. v. Branham, 145 §959 INSTRUCTIONS FORMS. II02 testimony of each and every witness such weight as, from all the facts and circumstances in proof before you in this case, you shall deem the same entitled to. It is your duty, if you can, to reconcile the testimony of the witnesses, if there be any disagree- ment between them; but if you can not, then you must deter- mine, from all the evidence before you, which of the witnesses is entitled to the greater credit.*^ § 959. Testimony of witness by deposition. — The court in- structs the jury that, from the evidence of the plaintiff that you have before you, you are not bound to believe the evidence of F. because it is contained in a deposition, any more than you, would be bound to believe his evidence if he were here and tes- tified from the witness-stand. And, in determining the extent to which credence should be given to his testimony, you may take into consideration the evidence offered by the defendant, and of the circumstances, the custom and course of dealing, by which banks handle such transactions." "Albright v. Brown, 23 Nebr. 136, '''Johnson County Savings Bank v. 36 N. W. 297. Walker, 79 Conn. 348, 6S Atl. 132. GENERAL INDEX. [References are to Bections.] A. ABANDONMENT, building contracts, 246, 247, 249. easements, 488. family by husband, 391. ordinary contracts, 331, 332. ABDUCTION, See Prostitution. forms of instructions, 392. ABORTION, forms of instructions, 393. ABSTRACT INSTRUCTIONS, pertinency, 85, 86. tests, 85. ACCEPTANCE, car by shipper, 263. deeds, 890. duty of telegraph companies to accept messages without discrimina- tion, 878. goods sold, 826. guaranty, 196. labor and materials under building contracts, 243. ACCESSORIES, See Accomplices. forms of instructions, 375. ACCIDENTAL KILLING, forms of instructions, 405. ACCIDENTS, See Negligence. injuries the result of mere accident, 701. injuries to employes, 638. injuries to passengers by inevitable accident, 277. 1 103 II04 GENERAL INDEX. [References are to Sections.'] ACCOMPLICES, corroboration, 53. credibility, 33. forms of instructions, 375. necessity for requested instructions on subject of testimony, 97. rules for determining credibility, 53. testimony in criminal cases, 14. ACCORD AND SATISFACTION, forms where less amount than debt received, 109. where mistake as to amount, 110. where settlement by check, 111. where settlement by note, 112. ACCOUNT STATED, formal requisites, 114. forms defining nature, 113. on acquiescence in account by silence, 116. on acquiescence in account from lapse of time, 115. on submission of claims of parties, 117. ACCRETIONS, forms defining term, 118. forms stating title to accretions, 119. ACQUIESCENCE, account stated by lapse of time, 115. account stated by silence, 116. boundaries, 207. ACT OF GOD, loss of shipment during transportation, 260. ACTS IN EMERGENCIES, See Fright. contributory negligence, 354. ACTUAL DAMAGES, instructions defining term, 426. ADDRESS, sufficiency on telegraph message, 885. ADJOINING LANDOWNERS, forms on damages for injuries in construction of tunnel, 121. relating to care in making excavations, 120. GENERAL INDEX. IIOj [References are to Sections.] ADMISSIONS, agents, 139. duty of court to determine voluntariness, 8. in criminal cases, 384. instructions on weight, 26. truth or falsity of admissions hy accused, 14. ADMONITIONS OF COURT, not instructions, 1. ADULTERY, forms of instructions, 394. ADVERSE POSSESSION, burden of proof, 135. evidence that may be considered on question, 133. forms on effect of occupancy of portion of land, 131. relating to adverse possession of wild land, 132. relating to character of inclosure, 126. relating to tacking possessions, 130. setting out essentials of holding or occupancy, 122. setting out eflfect of mistake as to boundary, 128. setting out failure of owner to protest, 124. setting out meaning of running of statute, 123. setting out necessity of hostility of possession at inception, 125. setting out necessity that plaintiff rely on strength of his own title, 129. where possession adverse as between husband and wife, 127. presumption of rightful possession, 134. ADVICE OF ATTORNEYS, defense to malicious prosecution, 626 AGED PERSONS, undue influence in execution of wills, 932. AGENCY, See Beckers and Factors. corporate agents, 367. forms for assignment of judgment by agent, 142. in case of implied and apparent authority of agency, 137. relating to admissions of agent, 139. relating to authority of agent for purchase of goods, 138. relating to liability of principal for excess of authority, 141. stating that notice to agent is notice to principal, 140. where one held out as agent, 136. libel by agent, 838. 70— Branson's Inst. II06 GENERAL INDEX. [References are ta Sections.] KGEUCY— Continued. misrepresentation by agent, 545. responsibility for acts of agents in maifcious prosecution, 624. termination of real estate agency, 241. AGGRAVATION OF DAMAGES, breach of promise of marriage, 225. existing injury by fall on defective sidewalk, 691. forms of instructions, 431. AGREEMENTS, See CONTKACTS. mutual agreements fixing boundaries, 207. ALIBI, forms of instructions, 371. necessity for requested instruction, 97. subject-matter of instructions, 56. whether defense established question for jury, 14. ALIENATION OF AFFECTIONS, foims in case of interference by parents, 143. relating to damages recoverable, 144, 145. ALTERATION OF INSTRUMENTS, forms in case of alteration of contract of guaranty, 148. in case of erasure of indorsements, 147. in case of insertion of official designation after signature, 146. AMBIGUOUS INSTRUCTIONS, cure by giving clear instruction, 94. ANIMALS, See Carriers of Goods and Animals; Fright. care toward frightened horses on street railway tracks, 859. collisions between street car and runaway team, 860. duty of carrier to furnish safe cars for transportation, 256. duty of carrier during transportation, 258, 259. duty of railway companies to maintain fences and cattle-guards, 813. duty of railroad company to post notice of killing animals, 812. duty to keep vicious animals confined, 149. forms on collision with frightened team, 151. on fright of horses at caged animals, 153. on injuries inflicted by vicious dog, 149, ISO. on trespass committed by cattle, 152. frightening horses by operation of trains, 791. injuries to animals on street railway tracks, 858. instructions on sale of diseased animals, 549. GENERAL INDEX. IIO7 [References are to Sections.] ANIMALS — Continued. liability of railroad company for killing animals on track, 812. negligent use of hired animals, 177. nuisance in maintenance of rendering plant, 719. objects in highways which tend to frighten horses, 876. presumption as to animals killed on railroad tracks, 812. presumption of negligence in killing animals on railroad tracks, 812. unruly work animals furnished employes, 651. ANNUITIES, basis for damages for wrongful death, 457. APPLIANCES, duty of inspection, 646. duty to safeguard machinery, 648. hidden defects, 647. knowledge of defect by master, 645. presumption of performance of duty by master, 642. safety for employe, 643-652. safety for railroad employes, 652. unruly work animals furnished employes, 651. APPLICATION, payments on mortgage debt, 317. ARCHITECTS, acceptance of work under building contract, 245, 246. enlargement of building contracts with architects, 247. ARGUMENTS, consideration to be given to arguments of counsel, 309. ARGUMENTATIVE INSTRUCTIONS, duty of court to avoid, 75, 76. elimination of argumentative matter in request, 100. sufBciency of objection on this ground, 106. ARREST, See False Arkest and False Imprisonment. assault committed in making unlawful arrest, 156. passenger at conductor's order, 287. resistance, 386. ASSAULT AND BATTERY, See Robbery. forms of instructions, 395. defining assault, 154. for assault on female, 158. iio8 GENERAL INDEX. [References are to Sections.} ASSAULT AND BATTERY— Continued. on assault committed by concurrent acts of two defendants, 157. on assault committed in making unlawful arrest, 156. where defense is self-defense, 155. on passenger by employes, 289. right of trial judge to read code on question of punitive damages, 68. ASSIGNMENTS, judgment by agent, 142. leases, 615. ASSUMPTION OF FACTS, invasion of province of jury, 15-18. particularity of exception on this ground, 106. when court may assume facts, 17. ASSUMPTION OF RISK, forms of instructions, 657-662. knowledge of conditions as element, 660. reliance by servant on master's assurance of safety, 661. work outside line of employment, 662. ASSURANCE OF SAFETY, right of servant to rely on master, 661. ATTACHMENT, forms for attachment to recover embezzled moneys, 160. for wrongful attachment, 161, 162. setting out grounds, 159. grounds, 159. ATTEMPTS, presumptions from attempts to escape, 377. ATTESTATION, wills, 911. ATTORNEYS, advice as defense to malicious prosecution, 626. as witnesses, 946. claims for fees against estates, 462. consideration to be given to remarks and arguments, 309. fees as element of damages for malicious prosecution, 628. forms relating to compensation, 168, 169. relating to compromises and releases, 167. relating to contracts with attorneys, 165. relating to duty of good faith, 166. relating to privileged communications, 170. GENERAL INDEX. IIO9 [References are to Sections.'i ATTORNEYS— Continued. necessity of request that advice of counsel is defense to malicious prosecution, 96. payment for legal services rendered by officers, 370. settlement without knowledge of attorney, 324. undue influence of attorney over client executing will, 931. AUTOMOBILES, collisions with street cars, 848. excessive speed in use of highways, 572. forms relating to care in operation of machine, 172, 173. relating to fright of horses, 174. relating to ownership of machine, 175. relating to right to use highway, 171. frightening horses, 174. right of motorman to assume that auto will leave track, 854. right of owner to use of highways, 571. on street railway tracks, 847. BAGGAGE, burden of proof of loss, 267. BAILMENTS, ^ forms relating to care of hired machinery, 178. relating to negligent use of hired animals, 177. setting out diligence in care of gratuitous bailment, 176. BANKRUPTCY, forms relating to burden of proof of insolvency, 180. relating to preferences, 181. defining insolvency, 179. BANKS AND BANKING, forms relating to deposit of wife's money in husband's name, 186. to determination of question of insolvency, 189. to guaranty of bank deposits, 188. to liability of persons operating banks, 182. to officers' knowledge of transactions, 183. to payment of draft, 185. to payment to husband on wife's certificate of deposit, 187. to receipt of deposits with knowledge of insolvency, 190. to retention of funds to pay certified check, 184. payment of obligation by check, 739. settlement by check as accord and satisfaction, 111. mo GENERAL INDEX. [References are to Sections.} BARRIERS, duty to place barriers at dangerous places in highway, 569. BASTARDS, presumption of legitimacy of child, 726. BELLS, duty of motorman to ring, 853. BENEFITS, improvement of condemned property, 507-509. BICYCLES, use of highways, 576. BIGAMY, forms of instructions, 396. BILLS AND NOTES, See Forgery; Guaranty; Principal and Surety. contracts to make loans, 339. erasure of indorsement, 147. forms relating to acceptance of guaranty, 197. to bona fide purchasers, 204, 205. to consideration, 194. to consideration for guaranty, 195. to execution and ratification of signature, 191. to extension of time for payment as consideration, 197. to failure of signer to read, 192. to genuineness of signature, 193. to lost notes, 203. to parol agreements, 198. to payment of note, 206. to promise of released indorser to pay, 199. to purchase money notes, 200, 201. where note given to secure payment of check, 202. insertion of official designation after signature as alteration, 146. paper executed by corporate officers, 368. payment of obligation by note or due-bill, 738. pledge of notes, 757. settlement by note as accord anij satisfaction, 112. wife as surety for husband, 763. BILLS OF LADING, carriers of goods and animals, 262-265. BLIND PERSONS, care to be exercised by blind persons in use of highway, 575. contributory negligence, 358. duty of care by driver of automobile toward blind traveler, 173. GENERAL INDEX. II 1 1 [References are to Sections.] BLOODHOUNDS, evidence of work, 389- BOARD AND LODGING, implied contract to pay, 338. BONA FIDE PURCHASERS, See Good Faith. bills and notes, 204, 205. real property, 891. BONDS, See Principal and Surety. execution without authority, 760. BONUS, application of bonus given to corporation by citizens, 366. BOUNDARIES, acquiescence in division lines, 207. certain and uncertain natural objects, 210. effect of mistake as to boundary on adverse possession, 128. expert testimony on question, 208. government corners, 208. high and low water marks, 211, 212. mutual agreement fixing boundary, 207. natural objects and artificial monuments, 20?. BRAKES, duty to equip street cars with efficient brakes, 846. BREACH OF CONTRACT, See Breach of Promise of Marriage ; Contracts. damages for breach of contract of sale, 833. damages for breach of contract of purchase of land, 893. forms of instructions, 329, 330. of employment, 632. sale of goods, 827. sale of partnership business, 730. BREACH OF COVENANT, warranty deed, 470. BREACH OF DUTY, element of negligence, 700.' 1 1 12 GENERAL INDEX. [References are to Sections.'] BREACH OF PROMISE OF MARRIAGE, forms bearing on question of character and reputation of parties, 217, 218. on conduct of defendant after refusal to carry out contract, 226. on eflfect of plaintiff's knowledge of facts that would prevent consummation of marriage, 219. on elements of damages, 224. on immoral consideration, 215. on question of evidence, 220-223. on seduction to aggravate damages, 225. on illicit relations as justification for breach, 216. relating to nature of liability, 213. relating to necessity of meeting of minds, 214. BREACH OF WARRANTY, goods sold, 832. BREAKDOWN, excuse for delay in transmission of messages, 883. BRIBERY, instructions, 721. BRIDGES, duty of city to maintain, 682. forms on constructive notice of unsafe condition, 229. duty to construct guard rail, 228. relating to duty to construct and maintain, 227. use of railroad bridges by pedestrians, 785. BROKERS AND FACTORS, false representations and reliance thereon in sales of land, 540. forms on duty of broker to conduct sale after purchaser found, 234. compensation, 235-239. contracts of real estate agents, 230. readiness and ability of purchaser to comply with contract, 233. relating to commission merchants, 242. relating to evidence for consideration of jury, 240. relating to performance of contract by real estate agent, 232. relating to stock brokers' contracts, 231. termination of agency, 241. BUILDING CONTRACTS, forms in cases where owner makes performance impossible, 252. forms relating to abandonment, 246, 247. to acceptance by architect, 245, 246. to allowance of interest for delay in payment, 253. to cancelation of contract, 250. GENERAL INDEX. III3 [References are to, Sections.} BUILDING CONTRACTS— ConimM^d. to changes in plans and specifications, 243. to compliance with contract, 244. to damages for defective construction, 254. to liability for additional labor and material, 248. to recovery for part performance, 249. to rescission for fraud or mistake, 251. BUILDINGS, damages for collapse, 436. BURDEN OF PROOF, adverse possession, 135. breach of promise of marriage, 220. contracts, 344. contributory negligence, 361. contributory negligence in sidevpalk injury cases, 692. forged wills, 937. form of instructions, 517. fraud, 551. fraud or mistake, 251. in criminal cases, 379. insanity, 43. insolvency, 180. loss of baggage, 267. master and servant relation, 678. necessity of request for instruction, 96. negligence, 713. negligence in action for wrongful death, 452. negligence in setting out fires, 538. negligent operation of cars, 300. sale of intoxicants, 480. street railway negligence, 866. testamentary capacity, 924. undue influence in execution of will, 933. validity of gifts, 567. BURGLARY, forms of instructions, 397. CANCELATION, building contracts, 250. CAPTION, request for instructions, 824. 1 114 GENERAL INDEX. [References are to Sections.'i CARE, See Negligence. CARRIERS OF GOODS AND ANIMALS, forms relating to bills of lading, 262-265. to care of live stock in transit, 258. to delay caused by snow blockade, 261. to duty to furnish safe and sufficient stock pens, 259. to duty to furnish safe cattle cars, 256. to duty to provide adequate supply of cars, 255. to liability of connecting carriers, 266. to loss of shipment through act of God, 260. to lost baggage, 267. to ownership as between consignor and consignee, 257. presumptions from possession of bill of lading, 262. CARRIERS OF PASSENGERS, See Railroads; Stiseet Railroads. contributory negligence of passengers, 276. forms on arrest of passengers at conductor's order, 287. assaults o» passengers, 289. burden of proof of negligent operation, 300. care as to premises, 278. care in transportation, 283. care of waiting-rooms, 278. commencement of relation, 268. contributory negligence of alighting passengers, 296. contributory negligence of boarding passengers, 282. contributory negligence of passenger going onto platform, 284. degree of care imposed on carrier, 271-275. duty to carry infirm persons, 270. duty to carry intoxicated persons, 269. duty to render assistance to alighting passengers, 292. effect of unauthorized signal to start, 295. expulsion of passengers from trains, 285. injuries caused by coUisions, 273. injuries caused by derailment, 274. injuries caused by crowds at stations, 279. injuries caused by jumping from car at direction of employes, 297. injuries caused by obstructions on track, 272. injuries caused by occupying dangerous position on car, 286. injuries caused by sudden starting of train, 281. injuries caused by suddenly starting car while passenger alighted, 294. injuries due to hidden defects, 275. injuries in attempts to escape threatened wrecks, 283. GENERAL INDEX. HIS [References are to SecMons.] CARRIERS OF PASSENGERS— Conri«Med. injuries received after leaving car, 298. injuries to alighting passengers, 290-297. injuries to passengers on mixed trains, 288. injury caused by inevitable accident, 277. presumptions of negligence, 299. reasonable opportunity to passenger to alight in safety, 293. violation of ordinances as to stopping places for street cars, 301. injuries to passengers boarding trains, 280, 282. CARS, See Carriers ; Railroads ; Street Railroads. duty of carrier to provide adequate and safe, 2SS, 256. injuries to persons loading or unloading cars, 788. CATTLE, See Animals. CATTLE-GUARDS, erection and maintenance by railroad companies, 813. CAUTIONARY INSTRUCTIONS, forms authorizing disregard of evidence believed to be untrue, 307. forms on care to be given to testimony concerning verbal statements, 311. consideration of demand made in pleadings, 312. consideration to be given to remarks and arguments of coun-sel, 309. construction of instructions by jury, 303. .duty to avoid prejudice, 310. duty to avoid speculations as to testimony, 308. duty to base verdict on evidence, 306. duty to exert efforts to avoid disagreement, 313. instructions as law of the case, 302. jury as judges of facts, 304. jury as judges of law, 305. instructions to disregard testimony erroneously received, 57. province of court and jury, 34. CEMENT, contract of sale, 825. CERTIFICATES, See Stock. architects, 245. surrender and reissue of pledged certificates, 758. CERTIFICATES OF DEPOSIT, payment, 187. IIl6 GENERAL INDEX. IReferences are to Sections.'i CERTIFIED CHECKS, retention of funds to pay, 184. CHARACTER, consideration on breach of marriage promise, 217, 218. good character of accused as issue in criminal prosecution, 45. necessity for requested instruction on subject, 97. presumption of good character in action for slander or libel, 841. CHARGE. See Instructions. CHARTERS, notice of charter to subscribers, 364. CHASTITY, presumption, 422. CHATTEL MORTGAGES, forms on application of payments on mortgage debt, 317. compliance with conditions of notice for foreclosure, 318. conversion of title by mortgagee, 315. good faith in execution, 314. grounds for insecurity, 316. CHECKS, notes to secure payment, 202. payment of obligations by check, 739. retention of funds to pay certified checks, 184. settlement by check as accord and satisfaction. 111. CHILDREN, See Infants. credibility as witnesses, 33. CHURCHES, See Religious Societies. CIRCUMSTANTIAL EVIDENCE, argumentative instruction, 76. instructions in civil cases, 518. instructions in criminal cases, 381. instructions on weight, 28. instruction not necessary where only venue is disputed, 47. necessity for requested instruction on subject, 97. subject-matter of instructions, 46, 47. to prove payment of obligation, 740. GENERAL INDEX. 1 1 17 [References are to Sections.] CIVIL DAMAGE LAWS, See Dramshops. CLAIMS, against estates of decedents, 463-466. oiBce of charge to set out claims of parties, 2. CLEARNESS, necessity of clearness of expression, 63. necessity of clear expression in requested instruction, 99. statement of grounds of objection, 104. COLLAPSE, docks, 909. COLLATERAL SECURITY, See Pledges. COLLISION, between automobiles and street cars, 848. between trains at railroad crossings, 793. between trains on switches, 273. frightened teams, ISl. street cars with runaway teams, 860. traction engine with train at crossings, 784. COLORED PERSONS, credibility as witnesses, 947. COMMANDS, duty of employes to obey commands of superior, 656. COMMENTS, disparaging comments on merits of case, 20. failure of party to testify in his own behalf or call material witnesses, 54. on evidence in instruction, 21-25. COMMISSION MERCHANTS, See Brokers and Factors. COMMISSIONS, real estate agents, 235-239. COMPARATIVE NEGLIGENCE, forms of instructions, 352. IIl8 GENERAL INDEX. [References are to. Sections.'] COMPENSATION, attorneys, 168, 169. real estate agents, 235-239. storage charges, 900. work for church, 819. COMPENSATORY DAMAGES, instructions on subject, 426. COMPETENCY, See Wills; Witnesses. presumption of competency of infant employe, 641. COMPETITIVE BUSINESS, contracts not to enter into, 336. COMPROMISE AND SETTLEMENT, See Accord and Satisfaction. forms relating to compromise as defense, 323. conclusiveness of settlement, 320. to essentials, 319. to fraud in procuring settlement, 322. to receipts, 321. to- settlement without knowledge of attorney, 324. right of attorney to make, 167. settlement by check as accord and satisfaction. 111. settlement by note as accord and satisfaction, 112. CONCLUSIVENESS, releases, 815. CONDITIONS, performance of conditions of release, 814. CONDUCTOR, whether fellow servant of fireman, 665. CONFESSIONS, credibility of confessed thieves as witnesses, 949. duty of court to determine whether voluntary, 8. force and effect question for jury, 14. in criminal cases, 384. necessity for requested instruction on subject, 97. subject-matter of instructions, 50. GENERAL INDEX. III9 [References are to Sections.1 CONFIDENTIAL RELATIONS, See Fraudulent Conveyances; Wills. gifts where relation exists, 565. CONFLICTING EVIDENCE, I instructions, 520. CONFLICT OF LAWS, fellow-servant doctrine applicable where injury received in a sister state, 666. CONNECTING CARRIERS, liability of carriers of goods and animals, 266. CONSIDERATION, contracts, 327. extension as consideration for contract of suretyship, 761. extension of time for payment of note, 197. guaranty, 195. immoral consideration for marriage contract, 215. inadequacy as denoting fraudulent conveyance, 560. meaning of "grossly inadequate consideration," 560. necessity of return on rescission of contract, 541. notes, 194. CONSPIRACY, duty of court to determine question of establishment, 8. instructions, 398. CONSTRUCTION, See Interpretation of Instructions. function of court to construe papers and documents, 7. CONSTRUCTIVE NOTICE, unsafe condition of bridge, 229. CONTENTIONS, function of court to state contentions of parties, 5. CONTRACTS, See Alteration of Instruments; Breach of Promise of Marriage; Build- ing Contracts; Deeds; Landlord and Tenant; Sales of Goods; Vendor AND Purchaser. agreement to provide in will for payment of services, 915. between attorney and client, 165. breach of agreement of sale of partnership business, 730. II20 GENERAL INDEX. [References are to Sections.'i COlSiTRAC'IS— Continued. breach of contract of employment, 632. of sale of goods, 827. brokers and factors, 230, 231. cancelation of building contracts, 2S0. comments and expressions of opinion, 23. compliance with building contract, 244. conclusiveness of release, 816. damages for breach, 437. damages for breach of contract of sale of real property, 893. duty of discharged employe to seek other employment, 634. forms relating to abandonment, 331-332. to breach, 328, 330. to burden of proof, 344. to consideration, 327. to contracts for exchange of property, 340. to customs and usages in construction, 334. to construction by jury, 333. to contracts against entering into competitive business, 336. to contracts for fruit trees, 342. to contracts for water for crops, 341. to contracts of employment, 343. to contract to make loan, 339. to fraud, 335. to implied contracts to pay board, 338. to implied contracts to pay for services, 337. to meeting of minds, 325. to mental capacity, 326. to performance, 328. function of court to construe, 7. illicit relations as justification for breach of marriage contract, 216, immoral consideration for marriage contract, 215. implied contracts of employment, 631. instructions on claims against estates for services rendered deceased, 465. knowledge of facts preventing consummation of marriage contract, 219, liability where owner makes performance of building contract impossi- ble, 252. nature of liability under marriage contract, 213. necessity of meeting of minds of parties to marriage contract, 214. necessity that terms of release be understood by parties, 816. partnership agreements, 728. proof of performance of contract of sale, 828. performance of contract by real estate agent, 232. question of performance or nonperformance for jury, 15. readiness and ability of purchaser of realty to comply with contract, 233. GENERAL INDEX. 1 121 [References are to Sections.] CONTRACTS— CowHuM^rf. release on performance of conditions, 814. rescission of contracts of purchase of real property, 892. sales of lands, 890-894. sale of practice of physician, 745. sales of goods, 825. validity of release as dependent on mental condition of releasor, 817. warranty of goods sold, 829. CONTRADICTORY INSTRUCTIONS, duty to avoid, 71. CONTRADICTORY STATEMENTS, impeachment of witnesses, 956. CONTRADICTORY TESTIMONY, duty of jury to reconcile, 958. CONTRIBUTORY NEGLIGENCE, alighting passengers, 296. care by employe in escaping impending danger, 671. care by employe to observe dangers, 672. collision with frightened team, 151. degree of care to be exercised by employes, 669. disregard of warnings by employe, 668. doctrine of discovered peril, 800. in master and servant relation, 674. in street railway injuries, 870. doctrine in master and servant relation, 667. doctrine of last clear chance, 799. duty of traveler to stop, look and listen at railroad crossing, 802-804. duty of traveler on street railway tracks to look and listen, 871. effect of failure to give last clear chance doctrine, 92. elevator injuries, 500. employe encountering obvious dangers, 673. erroneous action of injured person placed in sudden perjl, 801. forms defining meaning of term, 346. forms on imputed negligence, 352. forms relating to acts in emergencies, 354. burden of proof, 361. care required of blind persons, 358. care required of drunken persons, 359. care required of infants, 357. comparative negligence, 352. contributory negligence as a defense, 345. contributory negligence as presupposing negligence, 349. duty to avoid consequence of negligence of another, 349. duty to exercise ordinary care for one's own safety, 348. 71 — Branson's Inst. 1 122 GENERAL INDEX. [References are to Seotions.i CONTRIBUTORY NEGUGENCEr-Continued. humanitarian doctrine, 351. necessity for knowledge of danger, 356. opportunity to escape threatened danger, 355. presumption of contributory negligence, 360. proximate cause, 350. imputed negligence of parents of children injured on street railway tracks, 869. injured railroad employes, 675. injuries in jumping on moving cars, 808. instructions ignoring last clear chance doctrine, 108. instructions in action for wrongful death, 451, 452. instructions where absence of evidence on issue, 83. parents of child injured on track, 798. passengers boarding trains, 282. passenger occupying dangerous position in car, 286. passengers on trains, 276. passenger voluntarily going upon platform or passing into other cars, 284. patient, 754. person injured by electricity, 494. person injured in railroad accident, 797. pertinency of instructions, 81. presumption of the exercise of due care by injured employe, 670. presumption that person killed on railroad track exercised due care, 809. proximate cause of injuries, 868. recklessly driving on track in front of approaching street car, 872. reliance by traveler on signals of crossing watchman, 805. right of traveler to rely on safety gates, 806. street railway injuries, 867, 868. traveler crossing between cars in motion, 807. travelers on defective sidewalk, 692, 695. travelers on highways, 573, 574. travelers on streets, 683. CONTROL, duty of motorman to keep car under control, 848. CONVERSION, chattels by mortgagee, 315. public funds by officers, 720. CONVEYANCES, See Contracts ; Deeds ; Fraudulent Conveyances ; Vendor and Purchaser. GENERAL INDEX. II23 [References are to Sections.} CONVICTS, ex-convicts as witnesses, 950. rules for determining credibility as witnesses, 53. COOLING TIME, instructions, 406. CORPORATIONS, construction of charters, 7. duty of jury to avoid prejudice against corporation, 310. forms relating to application of bonus given by citizens, 366. to corporate agents, 367. to defenses to actions for unpaid subscriptions, 365. to false representations by promoters, 363. to notice of charter to subscribers, 364. to paper executed by officers, 36i8. to payment for legal services rendered by officers, 370. to recovery of expenses of promotion, 362. to sales to officers, 369. gifts of certificates, 564. liability for slander or libel, 838. pledge of corporate stock, 758. CORPUS DELICTI, duty of court to define, 40. whether established a question for jury, 14. CORROBORATING EVIDENCE, credibility of witnesses, 30. COURT, province, 4-34. CREDIBILITY, attorneys as witnesses, 946. confessed thieves as witnesses, 949. detectives as witnesses, 948. duty of court to define term, 40. employes testifying for employers, 943. ex-convicts as witnesses, 950. expert witnesses, 945. husband or wife as witnesses for each other, 944. interested witnesses, 939. prejudiced witnesses, 940, question for jury, 29-33. witnesses as subject-matter of instructions, 52, 53. witnesses exclusively for jury, 938. I 124 GENERAL INDEX. [References are to Sections.} CRIMINAL LAW, See Malicious Prosecution. abstract instructions, 86. alibi as subject-matter of instructions, 56. argumentative instructions, 76. assumption of facts in criminal cases, 18. circumstantial evidence as subject-matter of instruction, 47. comments and expressions of opinion in instructions, 24. confessions as subject-matter of instructions, SO. construction of charge as entirety, 92. contradictory instructions, 71. credibility of accomplices, 33. credibility of accused as witness, 33. credibility of witnesses, 33. as subject-matter of instructions, 53. definition of terms, 40. direction of verdict, 10. exception to charge as a whole where any part correct, 106. forms on abandonment of family, 391. abduction, 392. abortion, 393. accomplices and accessories, 375. admissions and confessions, 384. adultery, 394. alibi, 371. assault and battery, 395. bigamy, 396. burden of proof, 379. burglary, 397. circumstantial evidence, 381. conspiracy, 398. disturbing religious meetings, 399. duty to reconcile evidence, 388. embezzlement, 400. evidence of work of bloodhounds, 389. finding of guilt against more than one defendant, 390. forgery, 401. gaming, 402. giving theatrical performances without license, 424. good character of accused, 382. homicide, 403-413. insanity, 374. intent, 372. larceny, 414, 415. libel, 844. liquor law violations, 416. malice, 373. GENERAL INDEX. II25 [References are to Sections.] CRIMINAL LAW— Continued. nuisances, 417. presumptions from flight or attempts to escape, 377. presumption of innocence, 376. prostitution, 418. rape, 420. reasonable doubt, 380. refusal of peace officers to perform duties, 419. resisting arrest, 386. right to consider demeanor of witnesses, 387. robbery, 421. seduction, 422. setting out fires, 423. testimony of defendant in his own behalf, 383. testimony of witnesses before examining magistrates, 385. function of court to determine competency and materiality of evi- dence, 8. good character of accused as issue, 45. ignoring issues and evidence in criminal prosecutions, 90. indictment not evidence, 41. instruction on insanity of accused, 43. instruction on lower grade of offense, 42. instructions on lower grade where no evidence of lower grade offense, 82. instructions on withdrawn counts in indictment, 82. modification of request for instructions, 100. necessity for request for more specific instructions, 98. necessity for requested instruction defining "heat of passion," 97. pertinency of instructions, 80. to averments in indictment, 82. to evidence adduced, 84. to issues and evidence, 35. presumptions from attempt to escape, 49. presumptions from failure of defendant to testify, 55. presumptions from flight, 24, 49. presumptions from surrender to authorities, 378. presumptions of innocence, 51. prosecutions for maintaining nuisance, 719. question for jury whether defenses established, 14. questions of fact and weight and sufficiency of evidence, 14. reading from statutes in criminal prosecutions, 68. reasonable doubt as subject-matter, 44. receiving deposits with knowledge of insolvency, 190. refusal of request for errors, 101. refusal of request where matter sufficiently covered, 101. repetition of instructions, 65. requests for instructions, 97. 1 126 GENERAL INDEX. [References are to Beotions.'i CRIMINAL LAW— Continued. right of court to ignore defective counts in indictments, 90. sale of dangerous drugs, 486. theories of case in criminal instructions, 38. timeliness of exceptions, 105. undue prominence in instructions, 74. CRIMINAL LIBEL, prosecution, 844. CROPS, contracts for water, 341. damages for destruction by fire, 539. farm leases, 614. CROSSINGS, See Railroads. CROWDS, injuries to passenger through crowds at stations, 279. CURE OF ERROR, ambiguous instruction by clear instruction, 94. cure by correct instruction, 93. withdrawal of erroneous instruction, 95. CUSTOMS AND USAGES, construction of contracts, 334. D. DAMAGES, See Eminent Domain. actual and not speculative in eminent domain award, 503, 504. alienation of affections, 144. breach of contract of sale, 833. of sale of real property, 893. defective construction under building contract, 254. destruction of property by fires, 539. discharge of employe, 635. duty of court to define exemplary damages, 39. duty of discharged employe to seek other employment, 634. duty to request explicit instructions on the subject, 98. element of damages in breach of marriage promise, 224. false imprisonment, 531. malicious prosecution, 628. forms on actual or compensatory damages, 426. amount for collapse of building, 436. GENERAL INDEX. II27 {.References are to Sections.] DAMAGES — Continued. breach of contract, 437. damages accruing after suit filed, 433. duty to disregard sympathy, 429. exemplary damages, 427. injuries to personal property, 434. injuries to real property, 435. market value of property, 438. mitigation and aggravation, 431. necessity of witness testifying to amount, 428. nominal damages, 425. personal injuries, 439-448. prospective damages, 432. relating to mortality tables, 430. injuries in construction of tunnel, 121. injuries received in railroad accidents, 811. injuries to health from nuisance, 718. injuries to travelers on streets and sidewalks, 697. malpractice of physician, 756. market value of condemned property, 506. measure for abandonment of contract, 332. negligent filling of order by druggist, 484. nuisance, 718. right of condemning jury to disregard evidence of value, 516. sale induced by fraud, 552. seduction in aggravation of damages for breach of marriage promise, 225. slander or libel, 843. time to which valuation should relate in eminent domain award, 505. under dramshop laws, 481-483. wrongful death, 453-462. DAMS, care in construction and maintenance, 907 DANGEROUS EXCAVATIONS, forms of instructions, 708. DANGEROUS MACHINERY, forms of instructions, 709. DANGEROUS PREMISES, duty of care, 707. injury from fall in coal hole in sidewalk, 707. DANGLING WIRES, injuries from contact, 491. 1 128 GENERAL INDEX. IReferences are to Sections.] DEATH BY WRONGFUL ACT, determination of question of contributory negligence for jury, 12. forms on burden of proof of negligence, 449. contributory negligence, 451, 4S2. damages, 453-462. presumption of exercise of due care, 450. presumption that person killed on track exercised due care, 809, travelers killed by negligent operation of street cars, 848. DEATH MESSAGES, mental anguish as element of damages for negligent transmission, 8 DECEDENTS' ESTATES, forms on claims against estate, 463-465. claims for attorney's fees, 466. claims for services rendered deceased in his lifetime, 465. sufficiency of evidence to establish claim, 466. time of accrual of claim against estate, 463. DECISION, quotations in instructions, 69. DECLARATIONS, testamentary intentions, 914. DEDICATION, easements, 487. highways, 568. DEEDS, acceptance as consummation of sale of property, 890. construction by court, 7. delivery question for jury, IS. forms relating to breach of covenant of vfarranty, 470. execution of deeds, 467. mental capacity to execute, 469. necessity of delivery, 468. DEFAMATORY STATEMENTS, See Slander and Libel. DEFECTIVE SEWERS, instructions on resulting injuries, 698. DEFECTIVE SIDEWALKS, See Sidewalks. GENERAL INDEX. 1 129 [References are to Sections.] DEFENSES, compromise as defense, 323. contributory negligence, 34S. homicide, 408-412. malicious prosecution, 625, 626. nuisances 717. DEFINITIONS, account stated, 113. accretion, 118. assault, 154. contributory negligence, 346. disposing mind and memory, 918. essentials of adverse possession, 122, 123. explanation of terms of receipt, 321. fraud, 541. grossly inadequate consideration, 560. gross negligence, 702. inadequate price, 560. insanity, 43. insolvency, 179. instructions, 1. necessity for request for definition of terms, 96, 98. necessity for definition of lesser included offense, 97. negligence, 700. nuisance, 715. ordinary care, 700, 703, 848. preponderance of evidence 518. prescription, 749. reasonable diligence, 669. reasonable time, 229. seaworthy, 612. settlements, 319. terms in instructions, 39, 40. tight and sound, 612. undue influence, 926. warehousemen, 896. wilful negligence, 702. DELAY, breakdown of wires as excuse for delay of message, 883. interest for delay in payment on building contract, 253. transportation by snow blockade, 261. DELIVERY, deeds, 468. goods under contract of sale, 826. messages, 880, 884. 113° GENERAL INDEX. [References are to 8ections.'\ DELUSIONS, effect on testamentary capacity, 920. DEMEANOR, right to consider demeanor of witness, 31, 941. witnesses in criminal cases, 387. DEPOSITIONS, weight of testimony of witnesses so taken, 9S9. DERAILMENT, trains, 274. DETECTIVES, credibility as witnesses, 33, S3, 948. DEVISEES, See Wills. DIPLOMA, duty of physician to file, 744. DISABILITIES, care to be exercised by travelers under disability, 575. DISAGREEMENT OF JURY, duty of jurors to exert efforts to avoid, 313. DISCHARGE, damages for discharge of employe, 635. duty of discharged employes to seek other employment, 636. employes, 633. DISCOVERED PERIL, care after discovery of perilous position of person on track, 794. care to be exercised by motorman after seeing person in perilous posi- tion, 856. doctrine in connection with railroad accidents, 800. injuries to employes, 674. street railway injuries, 870. DISCRETION OF COURT, summing up of evidence, 11. DISCRIMINATION, transmission of telegraph messages, 878. DISEASED ANIMALS, sale, 549. GENERAL INDEX. II3I [References are to Sections.'^ DISFIGUREMENT, element of damages for personal injuries, 446. DISSOLUTION, authority of partners after dissolution, 736. partnership, 735. DISTRIBUTION, estate by testator, 935, 936. DISTURBING ASSEMBLIES, instructions, 399. DIVERSION, flow of water by construction of roadbeds, 764. waters, 90S. DIVISION, inequality among objects of testator's bounty, 935. violation of natural justice in making distribution by testator, 936. DOCKS, forms on collapse, 909. DOCUMENTS, function of court to construe, 7. necessity of request for construction, 96. DOGS, injuries inflicted by vicious dogs, 149, ISO. DONATIONS, See Gifts. DRAFTS, payment, 185. DRAINAGE, construction of roadbeds to interfere with drainage, 764. DRAMSHOP LAW, See Intoxicating Liquors. forms on amount of liquor sold, 473. burden of proof, 480. damages, 481-483. injury to person, property or means of support, 471. liability where sales made by different sellers, 472. necessity that intoxicants should be proximate cause of injuries, 476. II 32 GENERAL INDEX. [References are to Sections.'] DRAMSHOP LAW— Continued. notice to dealer forbidding sales to drunkard, 478. proof of time of sale, 479. question whether injuries maliciously inflicted, 477. sales to habitual drunkards, 475. sales to intoxicated persons, 474. DRUGGISTS, forms on criminal liability for sale of dangerous drugs, 486. damages for negligent filling of order, 485. negligence in filling orders, 484. meaning of prescription, 749. DRUNKEN PERSONS, See Intoxication. effect on testamentary capacity, 923. DUE-BILL, medium of payment of obligation, 738. DYING DECLARATIONS, admissibility as evidence, 952. undue prominence in instruction, 74. E. EARNING CAPACITY, damages for loss of earning capacity, 442. destruction as element of damages for wrongful death, 458. EARNINGS, right of parent to earnings of child, 724. EASEMENTS, forms on abandonment, 488. forms on dedication, 487. ECCENTRICITIES, effect on testamentary capacity, 921. ELECTRICITY, See Street Railways. argumentative instruction in action for injuries, 75. forms on contributory negligence of injured person, 494. general duty arising from dangerous nature, 489. injuries from fallen wires, 491. GENERAL INDEX. 1 133 [References are to Sections.] ELECTRICITY— Continued. injuries from lightning conducted over wires, 492. liability for defective wiring installed by another, 493. negligent insulation, 490. injuries to persons on highways, 875. injuries to property from defective wiring or insulation, 877. ELEVATORS, forms on care in operation and maintenance, 495. competency of operator, 497. contributory negligence of injured person, 500. injuries received on freight elevators, 498. presumptive evidence of negligence, 499. right to assume compliance with laws in operation and mainte- nance, 501. sufficiency of guard at shaft, 496. EMBANKMENTS, obstructing flow of water, 699. removal, 908. EMBEZZLEMENT, attachment to recover embezzled moneys, 160. instructions, 400. EMERGENCIES, acts as contributory negligence, 354. EMINENT DOMAIN, forms limiting damages to those caused by proposed use, 504. forms on benefits from improvement, 507. condemnation of property for pest house, 512. consideration of special uses to which land may be put, 509. consideration of value of spring on land taken, 513. damages and benefits to portions not taken, 508. damages for inconvenience, 511. damages in use of condemned property, 510. farm crossings and fences, 512. general rules for determining amount of award, 502. market value, 506. right of jury to disregard evidence in determining value, 516. time to which valuation should relate, 505. view of premises by jury, 515. forms requiring actual and not speculative damages, 503. EMPLOYES, See Master and Servant. 1 134 GENERAL INDEX. [References are to Sections.] EMPLOYMENT, See Master and Servant. what constitutes employment of physician, 746. ENGINEERS, See Railroads. ENTIRETY. construction of charge, 92. EQUIPMENT, street cars, 845, 846. ERROR, duty to request proper instruction, 96. ESCAPE, contributory negligence of employe in escaping impending danger, 671. presumptions from attempt to escape, 49, 377. EVICTION, from leased premises, 618. EVIDENCE, See Burden of Proof; Presumptions. assumption of facts in instructions, 15-18. breach of promise of marriage, 220-223. burden of proof in criminal cases, 379. in master and servant action, 678. burden of proof of contract, 344. forged wills, 937. fraud, SSI. negligence in action for wrongful death, 449. negligent operation of cars, 300. sale of intoxicants, 480. street railway negligence, 866. validity of gift, 567. circumstantial evidence as subject-matter of instruction, 46, 47. circumstantial evidence in criminal cases, 381. comments and expressions of opinion as to preponderance, 22. conformity of proof to allegations of injury from defective sidewalks, 689. conformity of proof to pleadings in master and servant action, 676. construction of instructions with reference to evidence, 91. contracts of real estate agents, 240. declaration of testamentary intentions, 914. GENERAL INDEX. 1 135 [References are to Sections.} EVIDENCE— Continued. defects in vicinity of place where sidewalk accident occurred, 690. distance in wliich train may be stopped, 810. duty of court to define preponderance, 39. duty to base verdict on evidence adduced, 306. duty to reconcile evidence in criminal cases, 388. duty of jury to reconcile contradictory testimony, 958. duty of jury to take into consideration the situation of parties to per- sonal injury cases, 712. effect of failure to introduce material witness, 222. expert testimony fixing corners, 208. forms on burden of proof, 517. care in consideration of verbal statements, 521. circumstantial evidence, 518. conflicting evidence, 520. effect of failure to call material witness, 523. expert opinion evidence, 519. positive and negative testimony, 523a. proof of identity, 522. function of court to determine competency and materiality, 8. genuineness of wills, 913. hypothetical statement of facts, 13. instructions ignoring evidence, 88, 90. instructions on weight of circumstantial and negative evidence, 28. instructions setting out evidence to support verdict, 89. instructions to disregard testimony erroneously received, 57. judicial notice of laws of foreign country, 7. limitation of purpose of evidence, 41. manner of death of animals killed on railroad tracks, 812. matters to be proved in action for malpractice, 755. matters to be proved in replevin action, 822. methods of proving fraud, 550. necessity of request for limitation to particular purpose, 96. necessity of request on presumption that one sees and hears what he should have seen and heard, 96. probative value of mortality tables, 96. relative value of positive and negative testimony, 97. ■ preponderance, 96. necessity that witness testify as to amount of damages, 428. negligence in escape of gas, 563. pertinency of instructions to evidence adduced, 35, 83, 84. pertinency on question of adverse possession, 133. pleadings not evidence, 41. positive and negative testimony as subject-matter of instruction, 48. presumptions, 51. from failure of party to testify in his own behalf, 54, 55. from failure to call material witness, 54. I 136 GENERAL INDEX. IReferences are to Sections,] EVIDENCE— Continued. from flight or attempts to escape, 49, 377. from possession of stolen property by accused, 415. from surrender of defendant to authorities, 378. of competency of infant employes, 641. of contributory negligence, 360, 361. of fact for jury, 12. of good character in action for slander or libel, 841. of innocence, 51, 376. of legitimacy of child, 726. of negligence from happening of accident, 639. of negligence in operation of cars, 299. of negligence in setting out fires, 537, 538. of negligence in street railway operation, 865. of negligent operation of trains, 768. of payment from lapse of time, 741. of testamentary capacity, 924. of undue influence in execution of wills, 933. presumptive evidence of negligence in operation of elevator, 499. proof of execution of wills, 912. of fraud in fraudulent conveyance, 561. of performance of contract of sale, 828. of time of sale of intoxicants, 479. of warranty of goods sold, 831. question of testamentary capacity, 925. recapitulation of testimony, 36. relative value of positive and negative testimony, 523a. right of jury to disregard evidence believed to be untrue, 307. contrary to physical facts, 714. where witness testifies falsely, 52. rulings as to admission or exclusion not instruction, 1. sufficiency of evidence to establish claim against decedents' estates, 466. to establish negligence, 711. summing up by the court, 11. testimony of defendant in his own behalf, 383. testimony of witness by deposition, 959. testimony of witnesses before examining magistrates, 385. to sustain charge of slander or libel, 840. undue influence in execution of will, 934. weight of contradictory evidence for jury, 19. work of bloodhounds, 389. EXCAVATIONS, instructions on dangerous excavations, 708. ordinary care in making, 120. EXCEPTIONS, GENERAL INDEX. II37 [References are to Sections.'i See Objections. bare exception to charge not equivalent to request, 99. clearness of statement of grounds of objection, 104. duty to make before jury retires, 105. general exceptions to entire charge part of which is correct, 107. particularity in statement of grounds of objection, 106. timeliness of objection, 105. to charge as a whole where any part correct, 106. waiver, 108. EXCESSIVE SPEED, See Speed. EXCHANGE OF PROPERTY, contracts, 340. EXECUTION, attestation of will, 911. bills and notes, 191-193. bonds without authority, 760. deeds, 467. fraudulent representations inducing execution of release, 818. leases, 613, 614. wills, 902-912. EXECUTORS AND ADMINISTRATORS, See Decedents' Estates. EXEMPLARY DAMAGES, ahenation of affections, 145. death by wrongful act, 462. duty of court to define, 39. form of instructions, 427. libel or slander, 843. malicious prosecution, 629. negligent transmission of telegraph messages, 887. under dramshop laws, 483. wrongful attachment, 162. EXHIBITIONS, general duty of care in giving public exhibition, 889. EXPECTANCY TABLES, See Mortality Tables. 72 — Branson's Inst. 1 1 38 GENERAL INDEX. [References are to Sections.} EXPERT TESTIMONY, argumentative instructions on credibility, 76. credibility and weight of testimony, 33, 945. fixing corners, 208. forms of instructions, 519. instructions on weight, 27. market value of property, 438. physicians, 750. rules for determining credibility as witnesses, S3. EXPULSION, passengers from train, 285, 287. EXTENSION OF TIME, consideration for payment of note, 197. consideration for suretyship, 761. F. FACTORS, See Brokers and Factors. FALSE ARREST AND FALSE IMPRISONMENT, See Malicious Prosecution. forms on arrest by putting person in fear by threats, 532. arrest by railroad officers, 530. arrest on void process, 528. arrest without warrant, 527. elements of damages, 531. malice, 525. manner of arrest, 526. place of arrest, 529. probable cause, 525. what amounts to false imprisonment, 524. wrongful incarceration in lunatic asylum, 533. instruction requiring jury to determine matter of law, 6. FALSE REPRESENTATIONS, promoters of corporations, 363. FALSUS IN UNO, duty to instruct doctrine, 52, 53. right of jury to disregard testimony false in part, 956. FARM CROSSINGS, over railroads, 512. signals, 772. GENERAL INDEX. 1 1 39 [References are to Sections.} FARM IMPLEMENTS, purchase money notes, 201. FARM LEASES, forms of instructions, 614. FEAR, arrest by putting person in fear by threats, 532. FEDERAL COURTS, comments and expressions of opinion in instructions, 25. FEDERAL LAWS, mine locations, 679. FEES, attorneys, 168, 169. FELLOW-SERVANT DOCTRINE, duty of master to employ capable and sufficient fellow servant, 664. general principles, 663. obedience to commands of superior, 656. rule where injury received in a sister state, 666. vice principal, 665. FENCES, erection and maintenance by railroad companies, 813. maintenance at railway stations, 813. right of way, 512. FENDERS, duty to equip street cars, 845. FIDUCIARIES, undue influence in execution of will, 928. FIREMAN, whether fellow servant of conductor, 665. FIRES, forms on burden of proof of negligence in setting out fires, 538. damages for destruction of property, 539. fires set out by locomotives, 535-537. fires set out by threshing engines, 534. loss of stored goods, 899. prosecution for setting out, 423. FISH, forms on ownership, 540. II40 GENERAL INDEX. [References are to Sections.] FLAGMAN, duty of railroad to station at crossings, 775. right of travelers to rely on signals, 805. FLIGHT, presumptions from flight, 24, 49, 377. FOOTPATHS, care to be exercised in running trains across footpaths used by trav- elers, 785. FORECLOSURE, compliance with conditions of foreclosure by posting notice, 318. FOREIGN COUNTRIES, proof of laws, 7. FORGED WILLS, burden of proof, 937. FORGERY, instructions, 401. wills, 937. FORM AND ARRANGEMENT, appeals to sympathy or prejudice, 77. argumentative instructions, 75, 76. contradictory instruction, 71. duty to mark instructions "given" or "refused," 61. importance, 59. limitation on number of instructions, 66. marking and signing instructions, 61. matter not greatly important, 59. misleading instructions, 70. necessity of clearness of expression, 63. quotations from decisions, 69. reading from statutes, 68. reading instructions to jury, 62. reference to pleadings for issues, 67. repetition of instruction, 64, 65. requests for instructions, 100. special findings, 78. undue prominence to particular features or evidence, 72-74. written instructions, 60. FORMER ACQUITTAL, question for jury, 14. GENERAL INDEX. II4I [References are to Sections.l FORMER JEOPARDY, establishment of defense question for jury, 14. FORMS, accord and satisfaction, 109-112. account stated, 113-117. accretion, 118, 119. adjoining landowners, 120, 121. adverse possession, 122-135. agency, 136-142. alienation of affections, 143-145. alteration of instruments, 146-148. assault and battery — civil liability, 154-158. attachment, 159-162. attorneys, 165-170. automobile law, 171-175. bailments, 176-178. bankruptcy, 179-181. banks and banking, 182-190. bills and notes, 191-206. boundaries, 207-212. breach of promise of marriage, 213-226. brokers and factors, 230-242. building contracts, 243-254. carriers of goods and animals, 255-267. carriers of passengers, 268-301. cautionary instruction, 302-313. chattel mortgages, 314-318. civil damage laws, 471-483. collapse of dock, 909. collision with frightened team, 151. compromise and settlement, 319-324. construction and maintenance of bridges, 227-229. contracts, 325-344. contributory negligence, 345-361. corporations, 362-370. criminal law generally, 371-390. criminal law — particular offenses and crimes, 391-424. damages, 425-448. death by wrongful act, 449-462. decedents' estates, 463-466. deeds, 467-470. direction as to form of verdict not instruction, 1. druggists, 484-486. easements, 487, 488. eminent domain, 502-516. evidence, 517-523a. II 42 GENERAL INDEX. [References are ta Sections.] FORMS— Continued. false arrest and imprisonment, 524-533. fires, 534-539. fish, 540. formal requisites of account stated, 114. fraud, 541-552. fraudulent conveyances, 553-561. fright of a horse at caged animals, 153. garnishment, 163-164. gas, 562, 563. gifts, 564-567. highways, 568-576. injuries from use of electricity, 489-494. injuries inflicted by vicious animals, 149. injuries in operation of elevators, 495-501. landlord and tenant, 613-621. malicious prosecution, 622-629. master and servant, 630-678. mines and mining, 679, 680. municipal corporations, 681-699. negligence, 700-714. nuisance, 715-719. officers, 720-722. parent and child, 723-727. partnership, 728-736. party walls, 737. payment, 738-743. physicians and surgeons, 744-756. pledges, 757-759. principal and surety, 760-763. railroads, 764-813. release of liabihty, 814-818. religious societies, 819. replevin, 820-823. requests for instructions, 824. sales of goods, 825-833. sales of real property, 890. slander and Ubel, 834-844. street railways, 845-873. telegraph and telephone companies, 874-888. theaters and places of amusement, 889. trespass committed by cattle, 152. vendors and purchasers of land, 890-894. verdicts, 895. warehousemen, 896-901. waters and water courses, 992-908. wharves, 909. GENERAL INDEX. 1 143 [Beferences are to Sections.] FORMS— Continued. wills, 910-937. witnesses, 938-959. FREIGHT ELEVATORS, injuries on, 498. FRAUD, execution of contracts, 335. false representations by promoters, 363. forms on burden of proof, 551. damages recoverable for sale induced by fraud, 552. falsity of representation and reliance thereon by defrauded party, 542. fraud against city, 548. fraudulent representations in sale of lands, 547. intention, 543. knowledge that representation is false, 544. methods of proving fraud, 550. misrepresentation by agent, 545. negligence of defrauded party, 546. sale of diseased animals, 549. what amounts to fraud, 541. procuring settlement, 322. rescission of building contract, 251. FRAUDULENT CONVEYANCES. forms on conveyances between husband and wife, 554. conveyances to creditors which hinder, delay or defraud, 555. conveyances to relatives and intimates, 553. conveyances with reservations for family of debtor, 556. inadequacy of consideration, 560. intention, 557. knowledge of fraud by grantee, 558. on proof of fraud, 561. transfers in the usual course of business, 559. FRAUDULENT REPRESENTATIONS, See Fraud. inducing execution of release, 818. reliance on representation by defrauded party, 542. rescission of contracts, 541. sale of lands, 547. FRIGHT, care toward frightened horses on street railway tracks, 859. collision with frightened teams, 151. 1 144 GENERAL INDEX. [References are to Sections.} FRIGHT — Continued. horse at caged animals, 153. horses by autos, 174. horses by operation of train, 791. objects in highway which tend to frighten horses, 876. FROGS, injuries from unblocked frogs, 652. FRUIT TREES, contracts for purchase, 342. GAMBLING, forms of instructions, 402. GARNISHMENT, forms, 163. forms relating to right of garnishee to offset, 164. GAS, forms on care in conduct of business, 562. on evidence of negligence, 562. GIFTS, forms on burden of proof of validity, 567. essentials of gifts inter vivos, 564. gifts where confidential relation exists, 565. mental condition of donor, 566. GONGS, duty to equip street cars with gongs, 850. GOOD CHARACTER, See Character. accused in criminal cases, 382. presumption in action for slander or libel, 840. GOOD FAITH, See Bona Fide Purchasers. duty of attorney to client, 166. execution of chattel mortgage, 314. good faith purchasers of real estate, 890. GOVERNMENT CORNERS, fixing boundaries, 208. GENERAL INDEX. 1 145 [References are ta Sections.'] GRADES, change of street grades, 681. injuries caused by tracks above street grades, 862. GRAIN, loss by fire while stored, 899. mixture of grain in storage, 898. GRAND JURY, effect of non-action on malicious prosecution, 627. GRATUITOUS BAILMENTS, diligence in care, 176. GROSS NEGLIGENCE, instructions, 702. GUARANTY, acceptance, 196. alteration of contract, 148. bank deposits, 188. consideration, 195. GUARD RAILS, duty to construct on bridges, 228. GUILTY KNOWLEDGE, question for jury whether proved, 14. H. HABITUAL DRUNKARDS, sales in violation of dramshop laws, 475. HEALTH, condemnation of property for pest house, 514. HEAT OF PASSION, necessity for requested instruction defining term, 97. HIDDEN DEFECTS, appliances and places of work, 647. injuries to passengers, 275. HIGH WATER MARK, boundary, 211, 212. I 146 GENERAL INDEX. IReferences are to Sections.'i HIGHWAYS, care in running trains at highway crossings, 781. care in running trains at street crossings, 782. cars blocking crossings, 783. changes of street grades, 681. collision with traction engine at crossings, 784. contributory negligence of travelers on streets, 683. duty of railroad company to station flagman at crossings, 775. duty of railroad company to sound signals at crossings, 771-773. forms on care in use of highway by traveler, 571. care to be exercised by travelers under disability, 575. contributory negligence of injured traveler, 573, 574. dedication, 568. duty to place barriers at dangerous places, 569. excessive speed, 572. law of the road, 570. use by bicyclist, 576. injuries from snow and ice on sidewalk, 694, 695. injuries to travelers at railroad crossings, 780. objects in highway which tend to frighten horses, 876. relative rights of public and railroad at crossings, 777. relative rights of public and company on tracks laid in streets, 779. right of pedestrian to assume legal use of street by other travelers, 684. rights of telegraph and telephone companies, 874. use by automobiles, 171. HOLDING OUT, principal as agent, 136. HOMICIDE, dying declarations as evidence, 952. instructions, 403-413. HORSES, See Animals; Fright. HOSPITAL EXPENSES, damages recoverable, 445. HOSTILITY, essentials of adverse possession, 125. HUMANITARIAN DOCTRINE, forms, 351. HUMILIATION, element of damages for personal injuries, 447. GENERAL INDEX. II47 [References are to Sections.} HUSBAND AND WIFE, See Bigamy. abandonment of family, 391. adverse possession as between spouses, 127. alienation of affections, 143-145. damages for wrongful death of husband, 455. damages recoverable for loss of wife's services, 448. deposit of wife's money in husband's name, 186. payment to husband on wife's certificate of deposit, 187. validity of conveyances between husband and wife, 554. wife as surety for husband, 763. witnesses for each other, 944. HYPOTHETICAL STATEMENTS, facts, 13. ICE, injuries from ice on sidewalks, 694, 695. on tracks, 863. IDENTIFICATION, whether established a question for jury, 14. IDENTITY, proof, 522. IGNORING EVIDENCE, instructions, 88, 90. IGNORING ISSUES, instructions, 87, 90. IMMORAL CONSIDERATION, marriage contract, 215. IMMORALITY, charges as slander or libel, 839. IMMUNITY, to witnesses, 951. IMPEACHMENT OF WITNESSES, contradictory evidence, 30. credibility of impeached witnesses, 33. effect, 954. right of jury to disregard testimony false in part, 956. 1 148 GENERAL INDEX. [References are to Sections.l IMPEACHMENT OF WITNESSES— Continued. right of jury to disregard unimpeached testimony, 955. variance between testimony in and out of court, 957. witnesses, 953. witnesses a question for jury, 14. IMPLIED AUTHORITY, agents, 137. IMPLIED CONTRACTS, employment, 631. payment for services, 337. to pay board, 338. IMPLIED INVITATION, creation of passenger relation, 268. IMPLIED MALICE, duty of court to define term, 40. IMPLIED WARRANTY, goods sold, 830. hired machinery, 178. IMPRISONMENT, See False Arrest and False Imprisonment. IMPUTED NEGLIGENCE, contributory negligence of parents of child injured on railroad track, 798. forms of instruction, 353. parents of child negligently killed, 451. parents of children injured on street railway tracks, 869. INCLOSURES, character of holding under adverse possession, 126. INCONSISTENT INSTRUCTIONS, duty to avoid, 71. INCONSISTENT REQUEST, refusal, 103. INCONVENIENCE, damages for inconvenience in use of condemned property, 511. INDEFINITENESS, requests where charge indefinite or inadequate, 98. GENERAL INDEX. J 149 [References are to Sections.] INDEPENDENT CONTRACTORS, duty of court to define term, 39. INDICTMENT, instructions on withdrawn counts, 82. not evidence in criminal prosecution, 41. pertinency of instructions to averments in indictments, 82. right of court to ignore defective counts in instructions, 90. INEVITABLE ACCIDENT, injuries to employes, 638. injuries to passengers, 277. INEXPERIENCED WORKMEN, duty to warn and instruct, 653. INFANTS, See Parent and Child. abduction, 392. care of engineer toward children seen on track, 776. care toward children on street railway tracks, 857. contributory negligence, 357. of parents of child injured on track, 798. damages for injuries, 440. damages for wrongful death, 456. degree of care to be exercised by children, 727. duty of care toward employes of tender years, 640. duty to instruct youthful employes, 653. general duty of care to avoid injury to infants, 704. imputed negligence of parents of children injured on street railway tracks, 869. presumption of competency of infant employe, 641. right of parent to earnings of child, 724. undue influence of child over parent in execution of will, 929. INFIRM PERSONS, duty of carrier to transport, 270. INFORMATION, right of jury to consider means, 942. INNOCENCE, presumptions, 376. INSANITY, burden of proof, 43. effect on testamentary capacity, 913. insanity as subject-matter of instructions, 43. II 50 GENERAL INDEX. I References are to Sections.} INSANITY— Coniinusd. forms of instruction, 374. presumption of continuance of condition, 43. question for jury whether defense of insanity established, 14. wrongful incarceration in asylums, 533. INSECURITY, grounds for feeling by mortgagee, 316. INSOLVENCY, burden of proof, 180. determination of question of insolvency of bank, 189. meaning of term in bankruptcy, 179. preferences under bankruptcy law, 181. receiving deposits by bank with knowledge, 190. INSPECTION, duty as to appliances and places of work, 646. INSTRUCTIONS, definitions, 1. duty of jury to follow whether right or wrong, 3. interpretation and effect, 91-95. law of the case, 3. office of charge, 2. youthful and inexperienced workmen, 653. INSULATION, injuries from negligent insulation, 490. injuries to property from defective insulation, 877. INSURERS, assumption of risk by employe, 657. city not insurer of users of sidewalk, 682, 686. INTENT, forms of instructions, 372. instruction on intention to defraud, 543. intention in fraudulent conveyance, 557. question whether criminal intent established for jury, 14. INTEREST, computation, 202. delay in payment on building contract, 253. INTERESTED WITNESSES, credibility, 32, 33. weight of testimony, 939. GENERAL INDEX. II5I [Re-ferences are to Sections.'] INTERFERENCE, with percolating waters, 902. INTERLINEATION, refusal of interlined request, 99. INTERPRETATION, construction of contracts by jury, 333. customs and usages in construction of contracts, 334. INTERPRETATION OF INSTRUCTIONS, charge as series and omissions supplied by reference to other instruc- tions, 92. charge viewed from standpoint of jury, 91. construction of charge as entirety, 92. construction with reference to issues, evidence and other instructions, 91. cure by withdrawal of erroneous instruction, 95. cure of ambiguous instruction by another instruction, 94. cure of erroneous instruction by correct instruction, 93. instructions on construction of instructions by jury, 303. . not required that each instruction shall cover all issues, 92. INTERROGATORIES, direction as to manner of answering not instruction, 1. INTER VIVOS, essentials of gifts, 564. INTOXICATED PERSONS, contributory negligence of drunken persons, 359. duty of carrier to transport intoxicated person, 269. travelers on highways, 574. INTOXICATING LIQUORS, See Dramshops. instructions under dramshop law, 416. necessity for requested instruction defining "malt" and "alcoholic" liquors, 97. sales to intoxicated persons, 474. sales to habitual drunkards, 475. INTOXICATION, defense in action for wrongful death, 452. defense to homicide, 409. effect on testamentary capacity, 923. 1 152 GENERAL INDEX. [References are to Sections.] IRRESISTIBLE IMPULSE, instructions, 408. ISSUES, construction of instruction with reference to issues, 91. function of court to outline, 5. instructions ignoring issues, 87. instruction should exclude consideration of abandoned or withdrawn issues, 81. office of charge to explain, 2. pertinency of instructions to issues, 35. reference to pleadings for issues, 67. J. JOINT NEGLIGENCE, instructions, 705. JUDGMENTS, assignment by agents, 142. construction by court, 7. JUDICIAL NOTICE, laws of foreign country, 7. JURY, province, 4-34. JUSTIFICATION, slander or libel, 837. KNOWLEDGE, K. See Notice. LANDLORD AND TENANT, construction of leases, 7. forms on assignment of lease, 615. effect of destruction of leased premises, 620. eviction from premises, 618. execution of lease, 613. farm leases, 614. payment of rental in services, 617. repairs on leased premises, 616. sale of leased premises by landlord, 619. termination of lease, 621. GENERAL INDEX. 1 1 53 [References are to Sections.] LAPSE OF TIME, acquiescence in account stated, 115. presumption of payment, 741. LARCENY, forms of instructions, 413, 415. possession of stolen property by accused, 12, 415. LAST CLEAR CHANCE, doctrine in application to railroad accidents, 799. effect of omission of doctrine in instruction on contributory negli- gence, 92. instructions on contributory negligence ignoring doctrine, 108. LAW OF THE CASE, cautionary instructions, 302. instructions ,to jury, 3. instructions not excepted to, 108. LAW OF THE ROAD, forms of instructions, 570. LEASES, See Landlord and Tenant. LEGAL PRINCIPLES, function of court to determine, 6. LEGITIMACY, presumption of legitimacy of child, 726. LETTERS, function of court to construe, 7. LEVEES, removal, 908. LEVY, replevin, 820. wrongful levy by sheriff, 722. LIBEL, See Slander and Libel. LICENSES, theatrical performances without license, 424. LIENS, vessel on cargo, 265. warehousemen, 901. 73 — Branson's Inst. 1^54 GENERAL INDEX. [References are to Seetions.l LIGHTING, duty of master to light place of work, 649. LIGHTNING, injuries from lightning conducted over wires, 492. LIMITATION, number of instructions, 66. LIMITATION OF ACTIONS, time of accrual of claim against estate, 463. LIVE STOCK, See Animals. LOANS, contracts to make, 339. LOCATIONS, mine location under federal laws, 679. LOCOMOTIVE, care in movement to avoid injury to employes, 637. care in operation, 767. injuries to trespassers riding on engines, 787. setting out fires, 535-537. LOITERERS, injuries to loiterers about stations, 786. LONGEVITY TABLES, See Mortality Tables. LOOK AND LISTEN, See Stop, Look and Listen. LOOKOUT, duty of engineer to keep lookout for animals on track, 812. duty of engineer to keep lookout for employes on track, 642. duty of motorman to keep lookout, 852. duty of traveler at highway crossing to keep lookout for approaching cars, 802. duty to maintain lookout on approaching trains, 774. LOSS OF TIME, element of damages for personal injuries, 443. LOST NOTES, forms of instructions, 203. GENERAL INDEX. II55 [References are to Sections.^ LOW WATER MARK, boundary, 211, 212. LUCID INTERVAL, duty of court to define term, 40. M. MACHINERY, bailments, 178. duty of master to safeguard, 648. instructions on dangerous machinery, 709. MAGISTRATES, testimony of witnesses, 385. MAIL CRANES, injuries from mail cranes, 792. MALICE, arrest, 525. essential of malicious prosecution, 623. essential of slander or libel, 835. ingredient of homicide, 407. instructions, 373. MALICIOUS PROSECUTION, See False Arrest and False Imprisonment. forms on advice of attorney as defense, 626. effect of non-action by grand jury, 627. elements of damages, 628. essentials of malicious prosecution, 622. exemplary damages, 629. malice, 623. probable cause, 625. responsibility for acts of agents, 624. necessity of request on defense of advice of counsel, 96. recovery of exemplary damages, 427. MALPRACTICE, See Physicians and Surgeons. MANDATORY MATTERS, marking and signing instructions, 61. written instructions, 60. MANSLAUGHTER, instructions, 404, 405. 1 1 56 GENERAL INDEX. [References are to Sections.] MARKET VALUE, damaged property, 438. damages in eminent domain proceedings, 506. MARKING INSTRUCTIONS, necessity, 61. MARRIAGE, See Bigamy; Husband and Wife. MASTER AND SERVANT, contracts of employment, 343. employes as witnesses, 943. forms on assumption of risk, 657-662. breach of contract of employment, 632. burden of proof, 678. care in movement of engines and cars, 637. conformity of proof to pleadings, 676. continuance of relation after close of work hours, 630. contributory negligence, 667-675. damages for discharge, 635. degree of care to be exercised for safety of employe, 636. discharge of employes, 633. duty of care toward employes of tender years, 640. duty of discharged employe to seek other employment, 634. duty to instruct and warn youthful and inexperienced servants, 653. duty to sound warnings to railroad employes at work on track, 654. fellow-servant doctrine, 663-666. implied contract of employment, 631. inevitable accident, 638. negligence as a question of fact, 677. obedience to commands of superior, 656. presumption of competency of infant employe, 641. presumptions of negligence from happening of accident, 639. rules for government of employes, 655. safety of appliances and places of work, 643-652. necessity of request for instructions on degree of care, 96. right of parent to earnings of child, 724. superintendence of mining operations, 680. MEDICAL ASSISTANCE, element of damages for personal injury, 445. MENTAL ANGUISH, element of damages for malpractice, 756. negligent transmission of messages, 888. railway injuries, 811. GENERAL INDEX. 1 1 57 [References are to Sections.] MENTAL CONDITION, See Testamentary Capacity. affecting testamentary capacity, 917-925. donor of gift, 566. execution of contracts, 326. deeds, 469. validity of release as dependent on mental condition of releasor, 817. MERCANTILE REPORTS, libel in publication, 838. MERITS, disparaging comments on merits of case, 20. MESSAGES, breakdown of wires as excuse for delay in transmission, 883. duty of telegraph company to accept without discrimination, 878. erroneous transmission, 882. general duty of care in transmission or delivery of messages, 880. negligent delivery, 884. right of telegraph company to fix office hours for receipt and trans- mission, 879. sufficiency of sendee's address, 885. taking messages over telephone for transmission over telegraph wires, 881. METHODS OF WORK, work about railroad trains, 642. MINES AND MINING, methods of estimating value of labor performed, 679. mine location under federal laws, 679. superintendence of mining operations, 680. MINORS, See Infants. MISLEADING INSTRUCTIONS, duty to avoid, 70. duty to request explicit instructions, 98. sufficiency of exception on this ground, 106. MISREPRESENTATIONS, agents, 545. MISTAKE, effect of mistake as to boundary on adverse possession, 128. effect on accord and satisfaction, 110. ground for rescission of building contracts, 251. II SS GENERAL INDEX. [References are to Sections.^ MITIGATION OF DAMAGES, instructions, 431. MIXED TRAINS, injuries to passengers, 288. MIXTURE, grain in storage, 898. MODIFICATION, necessity of exception after modification, 108. requested instructions, 100. MONOMANIA, effect on testamentary capacity, 920. MONOPOLIES, contracts not to enter into competitive business, 336. MONUMENTS, boundaries, 209. MORAL CHARACTER, impeachment of witnesses, 953. MORTALITY TABLES, instructions, 430. necessity of request on probative value, 96. use in prosecutions under dramshop laws, 482. MORTGAGES, See Chattel Mortgages. construction by court, 7. MORTIFICATION, element of damages for malicious prosecution, 628. MOTORMAN, See Street Railways. care to be exercised in operation of cars, 848. MUNICIPAL CORPORATIONS, abstract instructions in actions for injuries, 85. application of bonus given by citizens to corporations, 366. control of city over streets, 682. duty to provide against possible dangers, 682. forms on changes of street grades, 681. contributory negligence of travelers on streets, 683. GENERAL INDEX. I I 59 [References are to Bections.] MUNICIPAL CORPORATIONS— ConiiMM^rf. damages caused by obstruction of water courses, 699. damages for injuries to travelers on streets and sidewalks, 697. defective sidewalks, 685-693. duty to keep streets and sidewalks in safe condition, 682. injuries caused by defective sewers, 698. injuries caused by snow and ice on sidewalks, 694, 695. right of pedestrian to assume that travelers will use streets le- gally, 684. temporary obstruction of sidewalks in course of repair, 696. instructions on fraud against city, 548. liability of officers for conversion of public funds, 720. limitation of evidence in case of highway injuries, 41. maintenance of ponds as nuisances, 719. MURDER, See Homicide. MUTUALITY, meeting of minds on contract, 325. N. NATURAL GAS, negligence in conduct of business, 562, 563. NATURAL OBJECTS, boundaries, 209, 210. NAVIGABLE WATERS, defined, 904. NEGATIVE TESTIMONY, instructions on relative value of positive and negative testimony, 523a. instructions on weight, 28. necessity of requested instruction on relative value of positive and neg- ative testimony, 97. subject-matter of instruction, 48. NEGLIGENCE, See Animals ; Carriers of Goods and Animals ; Carriers of Passengers ; Contributory Negligence; Damages; Death by Wrongful Act; Elec- tricity; Fires; Gas; Highways; Master and Servant; Municipal Cor- porations ; Physicians and Surgeons ; Railroads ; Street Railways ; Telegraph and Telephone Companies. aggravation of existing injury by fall on defective sidewalk, 691. assumption by servant of master's negligence, 658. assumption of risk by employes, 657-662. Il6o GENERAL INDEX. [References are to Sections.} NEGLIGENCE— Co«/i«ii^d. automobiles, 171-175. burden of proof of negligence, 713. burden of proof of street railway negligence, 866. care after discovery of perilous position of exposed person, 794. care and skill to be exercised by physician or surgeon, 747. care demanded of warehousemen, 897. care in construction and maintenance of dams, 907. care in running trains at highway crossings, 781. in the employment of engines and cars, 637. in the operation of locomotives or trains, 767. in use of highway by traveler, 571. of engineer toward children seen on track, 776. to be exercised by child, 727. to be exercised by motorman after seeing person in perilous po- sition, 856. to be exercised by railroad company at places where persons may be expected on tracks, 785. to be exercised in operation of cars, 848. toward children on street railway tracks, 857. collapse of dock, 909. collisions between trains at railroad crossings, 793. collisions with traction engines at railroad crossings, 784. contributory negligence presupposes negligence, 347. defrauded party, 546. degree of care imposed on carrier, 271-276. degree of care to be exercised for safety of employes, 636. delivery of messages, 884. druggists in filling prescriptions, 484, 485. duty of care toward employes of tender years, 640. of city to foresee and guard against possible dangers, 682. of city to keep streets and sidewalks in safe condition, 682. of court to define, 39. of engineer to sound signals, 771-773. of engineer where signals not heard or heeded, 796. of motorman to keep cars under control, 849. of motorman to keep lookout and signal, 852, 853. to avoid consequences of negligence of another, 349. to maintain lookout on approaching train, 774. effect of excitement of motorman, 848. evidence of defects in sidewalks in vicinity of place where accident oc- curred, 690. of negligence in escape of gas, 563. excessive speed of trains, 770. forms defining term, 700. forms on burden of proof, 713. care in respect to dangerous premises, 707. GENERAL INDEX. II6I [References are to Sections.'] NEGLIGENCE— ConfJtiMeat. care to avoid injuries to infants, 704. dangerous excavations, 708. dangerous machinery, 709. duty of jury to take into consideration situation of parties, 712. gross and wilful negligence, 702. injuries the result of mere accident, 701. joint negligence, 70S. ordinary care, 703. proximate cause, 706. recovery limited to allegations in pleading, 710. right of jury to disregard evidence contrary to physical facts, 714. sufficiency of evidence to establish, 711. frightening horses by operation of trains, 791. general duty arising from dangerous character of electricity, 489. general duty of care as to public exhibitions, 889. general duty of care in transmission or delivery of messages, 880. hidden defects in sidewalks, 688. injury by inevitable accident, 277. injuries caused by escaping steam, 790. injuries caused by snow and ice on tracks, 863. injuries due to defective sidewalks, 685-693. injuries from hidden defects, 275. mail cranes, 792. operation of elevators, 495-501. snow and ice on sidewalks, 694, 695. injuries to passenger in attempt to escape threatened wreck, 283. persons at work on the premises of others, 789. persons loading or unloading cars, 788. persons on highways from electric wires, 874. property from defective wiring or insulation, 877. trespassers on railroad premises, 786. trespassers riding on engines, 787. liability of railroad company for injuries based on negligence, 765. notice to city of dangerous condition of sidewalks, 687. objects in highways which tend to frighten horses, 876. ordinary care in making excavations, 120. ordinary care in operation of street railways, 848. pertinency of instructions, 81. presumptions of negligence from happening of accident, 639. presumption of negligence in case of fires set out by locomotives, 537. presumption of negligent operation of locomotives, 768. proximate cause of railroad injuries, 769. question for jury, IS. question of fact in master and servant actions, 676. relative rights of parties on street railway tracks, 847. I I 62 GENERAL INDEX. [References are to. Sections.] i^EGLlGENCE— Continued. right of engineer to assume that person on track will step aside in time to avoid injury, 795. right of motorman to assume that travelers will act sensibly, 854, 855. right of pedestrian to assume legal use of street by other travelers, 684. right of traveler to assume safety of sidewalks, 693. wanton injuries by street railway companies, 864. wilful negligence, 766. NEGROES, credibility as witnesses, 947. NEW TRIAL, exceptions to instructions taken after filing motion, 105. NOMINAL DAMAGES, instructions, 425. NOTICE, bank officers' knowledge of transactions, 183. charters to corporate subscribers, 364. constructive notice of unsafe condition of bridges, 229. duty of railroad company to post notice of killing animals, 812. forbidding sales of liquor to drunkards, 478. knowledge of defects in appliances by master, 645. knowledge of fraud by grantee under conveyance, 558. knowledge of insolvency by bank officers receiving deposits, 190. knowledge that representation is false, 544. necessity of knowledge of danger, 356. posting notice of foreclosure of chattel mortgage, 318. servant's knowledge of unsafe conditions of employment, 660. to agent as notice to principal, 140. to city of dangerous condition of sidewalks, 684. NUISANCE, forms in criminal prosecutions, 719. forms on damages, 718. defenses, 717. what constitutes a nuisance, 715. personal liability, 716. instructions, 417. limitation of purpose of evidence in action, 41. NUMBER, limitation on number of instructions, 66. 0. OBEDIENCE, servant to commands of superior, 656. GENERAL INDEX. II63 [References are ta Sections.'] OBJECTIONS, See Exceptions. clearness of statement of grounds of objection to instructions, 104. particularity in statement of grounds, 106. timeliness of objections to instructions, 105. OBSTRUCTIONS, diversion of waters, 90S, 906. easements, 487. embankments obstructing flow of water, 699. on railroad track, 272. percolating waters, 902. temporary obstructions of sidewalks in course of repair, 696. view of railroad crossing, 804. OBVIOUS DANGERS, assumption by servant, 659. contributory negligence of employes, 673. ODORS, nuisance, 716. OFFICE HOURS, right of telegraph companies to fix, 879. OFFICERS, See Banks and Banking. corporate agents, 367. forms on bribery, 721. conversion of public funds, 720. wrongful levy on property, 722. paper executed by corporate officers, 368. payment for legal services rendered by corporate officers, 370. refusal to perform duties, 419. sales to corporate officers, 369. OFFSET, right of garnishee to urge, 164. OLD AGE, effect on testamentary capacity, 922. OPERATIONS, consent to surgical operation, 753. OPINION EVIDENCE, See Expert Testimony. 1 1 64 GENERAL INDEX. [References are to Sections.} ORAL CHARGES, may be given when, 60. ORDINANCES, construction by court, 7. presumption of knowledge of speed ordinance by traveler, 83. regulating speed of trains, 770. violation by street railway companies, 850. violation of ordinances as to stopping places for street cars, 301 ORDINARY CARE, See Contributory Negligence; Negligence. instructions, 703. OWNERSHIP, fish, 540. property replevined, 821. P PAIN AND SUFFERING, damages for wrongful death, 461. elements of damages, 441. PAPERS, function of court to construe, 7. PARENT AND CHILD, See Infants. alienation of affections, 143. contributory negligence of parents of child injured on track, 798. damages for wrongful death of parent, 454, 455. forms on degree of care to be exercised by child, 727. duty of child to care for parent, 723. payment for services rendered parent by child, 725. presumption of legitimacy of child, 726. right of parent to earnings of child, 724. imputed negligence, 353. PAROL AGREEMENT, bills and notes, 198. PARTICULARITY, statement of grounds of objections to instruction, 106. PARTIES, assault committed by concurrent acts of two defendants, 157. persons liable for nuisances, 716. GENERAL INDEX. 1 165 [References are to^ Sections.] PARTNERSHIP, forms on authority of partners after dissolution, 736. breach of agreement of sale of partnership business, 730. business in which partnership may engage, 731. dissolution, 735. liability of silent partner, 729. partnership agreements, 728. replevin of partnership property, 733. retirement of partner, 734. transactions between decedent and firm of which plaintiff is mem- ber, 732. replevin of partnership property, 821. PART PERFORMANCE, building contracts, 249. PARTY WALLS, right to protect party wall, 737. PASSAGEWAYS, safety for employes, 650. PASSENGERS, See Carriers of Passengers. PAYMENT, agreement to' provide in will for payment of services, 915. application on mortgage debt, 317. burden of proof of payment of claim against estate, 465. certified checks, 184. drafts, 185. fare as condition to passenger relation, 268. forms on establishment by circumstantial evidence, 740. payment by check, 739. payment by note or due-bill, 738. payment by third person, 742. presumption of payment from lapse of time, 741. recovery back of payments, 743. legal services rendered by officers, 370. notes, 206. receipt of less amount than debt, 109. rental of premises in services, 617. services rendered parent by child, 725. wife's certificate of deposit to husband, 187. PECUNIARY BENEFITS, damages for wrongful death, 459. I I 66 GENERAL INDEX. [Beferences are to Sections.} PERCOLATING WATERS, obstructions, 902. PERFORMANCE, condition of release, 814. contracts, 328. contract of sale, 828. PERMANENT INJURIES, damages recoverable, 448. PERSONAL INJURIES, See Negligence. damages recoverable, 439-448. PERSONAL PROPERTY, damages for injuries, 434. PERTINENCY, See Subject-Matter of Instructions. abstract instructions, 85-86. ignoring evidence, 88. ignoring issues, 87. ignoring issues and evidence in criminal prosecution, 90. instructions to averments in indictments, 82. instructions to evidence adduced. 83, 84. instructions to pleadings, 81. necessity that instruction should be perlinent, 79, 80. setting out evidence to support verdict, 89. PEST HOUSES, condemnation of property, 514. PHYSICAL FACTS, right of jury to disregard evidence contrary to physical facts, 714. PHYSICIANS AND SURGEONS, forms defining prescriptions, 749. forms on care and skill to be exercised, 747. care to be exercised by specialists, 748. contracts for sale of practice, 745. contributory negligence of patient, 754. damages for malpractice, 756. duty to call physician as witness, 751. duty to file diploma, 744. matters to be proved in action for malpractice, 755. physician as expert witness, 750. GENERAL INDEX. II67 [References are to Sections.} PHYSICIANS AND SVRGEOiiS— Continued. use of X-ray machine, 752. what constitutes employment of physician, 746. forms predicated on consent to operation, 753. undue influence of physician over patient executing will, 930. PLACE, arrest, 529. at what point duty to stop, look and listen to be performed, 803. PLACES OF WORK, duty of inspection, 646. hidden defects, 647. insufficient lighting, 649. knowledge of defects by master, 64S. passageways, 650. presumption of performance of duty by master, 644. safety for employes, 643-652. safety for railroad employes, 652. PLANS AND SPECIFICATIONS, changes, 243. PLATFORM, contributory negligence of passengers riding on platforms, 284. PLEADINGS, conformity of proof to allegations of injuries from defective sidewalks, 689. conformity of proof to pleadings in master and servant actions, 676. consideration by jury of demands made in pleading, 312. duty of court to tell jury that pleadings are not evidence, 41. implied adjudication that pleading states cause of action, 91. pertinency of instructions, 81. practice of reading to jury condemned, 67. recovery limited to negligence alleged in pleadings, 710. reference to pleadings for issues, 67. PLEDGES, forms on notes held as collateral, 757. pledge of corporate stock, 758. ratification of sale of pledged property, 759. POLES, injuries from fall of telegraph poles, 875. PONDS, nuisances, 719. 1 1 68 GENERAL INDEX. [References are to Sections.] POSITIVE TESTIMONY, instructions on relative value of positive and negative testimony, 523a. necessity for requested instruction on relative value of positive and negative testimony, 97. subject-matter of instruction, 48. PRAYERS, See Requests fob Instructions. PREFERENCES, under bankruptcy law, 181. PREJUDICE, cautionary instructions, 34. duty of court to avoid in instruction, 77. duty of jury to avoid prejudice against corporation, 310. PREJUDICED WITNESSES, weight of testimony, 940. PRELIMINARY EXAMINATION, testimony of witnesses before examining magistrates, 385. PREMISES, care in respect to dangerous premises, 707. PREPONDERANCE OF EVIDENCE, See BuKDEN OF Proof. PRESCRIPTIONS, defined, 749. negligent filling by druggists, 484, 485. PRESENT WORTH, recovery of damages for wrongful death, 460. PRESUMPTIONS, animals killed on railroad tracks, 812. attempts of accused to escape, 49. chastity in prosecution for seduction, 422. competency of infant employes, 641. consent of patient to operation, 753. continuance of insanity, 43. contributory negligence, 360. exercise of due care by employes, 670. exercise of due care by person killed on track, 809. exercise of due care by person negligently killed, 450. fact for jury, 12. GENERAL INDEX. Il6f( [References are to Sections.l FKESXJWPTIONS— Continued. flight or attempts to escape, 49, 377. good character in action for slander or libel, 841. innocence, 376. innocence in criminal prosecution, SI. legitimacy o£ child, 726. negligence, 865. negligence from happening of accident, 639. negligence in killing animals, 812. negligence in operation of cars, 299. negligent operation of railroad, 768. payment from lapse of time, 741. performance of duty by master as to safety of appliances and places of work, 644. possession of bill of lading, 262. presumptive evidence of negligence in operation of elevator, 499. rightful possession in case of adverse possession, 134. right of traveler to assume safety of sideviralks, 693. surrender of defendant to authorities, 378. testamentary capacity, 924. undue influence in execution of wills, 933. PRIMA FACIE EVIDENCE, necessity for request for definition of term, 97. PRINCIPAL AND AGENT See Agency. PRINCIPAL AND SURETY, forms on execution of bond without authority, 760. extension as consideration, 761 release of surety, 762. wife as security for husband, 763. PRIVATE DETECTIVES, credibility as witnesses, 948. PRIVILEGED COMMUNICATIONS, between attorney and client, 170. defense to libel or slander, 836. PROBABLE CAUSE, arrest, 525. malicious prosecution, 625. PROBATE, See Wills. 74 — Br.^nson's Inst. 1 170 GENERAL INDEX. [References are to Sections.'] PROCESS, arrest on void process, 528. arrests without warrant, 527. levy of replevin on property, 820. PROLIXITY, prayers for instruction, 96. PROMOTERS, false representations, 363. recovery of expenses of promotion, 362. PROSPECTIVE DAMAGES, instructions, 432. PROSTITUTES, See Abduction. credibility as witnesses, 33. duty of court to define term, 40. form of instructions, 418. PROTEST, effect of failure of owner of land to protest against adverse holding, 124. PROVINCE OF COURT AND JURY, assumption of facts, 15-18. assumption of facts in criminal cases, 18. cautionary instructions, 34. comments and expressions of opinion in criminal cases, 24. comments and expression of opinion on evidence, 21-25. credibility of witnesses, 29-33. credibility of witnesses and weight of testimony, 938. credibility of witnesses in criminal cases, 33. direction of verdicts in civil cases, 9. direction of verdicts in criminal cases, 10. disparaging comments on merits of case, 20. duty of court to outline issues and state theories and contentions, 5. function of court to construe papers and documents, 7. function of court to determine competency and materiality of evi- dence, 8. function of court to determine legal principles, 6. hypothetical statement of facts, 13. instructions on jury as judges of facts, 304. instructions on jury as judges of law, 305. jury as judges of law of libel, 842. negligence a question of fact, 677. GENERAL INDEX. II7I [References are to 8ections.1 PROVINCE OF COURT AND J\JRY— Continued. presumptions of fact for jury, 12. questions of fact and weight of evidence in criminal cases, 14. summing up evidence, 11. weight of admissions of parties, 26. weight of circumstantial and negative evidence, 28. weight of contradictory evidence, 19. weight of expert testimony, 27. PROVOCATION, necessity for requested instruction, 97. PROXIMATE CAUSE, contributory negligence, 350. in street railway accidents, 868. duty of court to define, 39. forms of instructions, 706. injury from sale of intoxicants, 476. railroad injuries, 769. PUBLICATION See Slander and Libel. PUBLIC HEALTH, PUBLIC OFFICERS, See Nuisance. See Officers. PUNITIVE DAMAGES, See Exemplary Damages. PURCHASE-MONEY NOTES, forms, 200, 201. PURIFICATION PLANTS, nuisance, 716. Q. QUESTIONS OF LAW AND FACT, See Province of Court and Jury. QUOTATIONS, decisions in instructions, 69. R. RAILROADS, See Carriers of Goods and Animals; Carriers of Passengers; Eminent Domain ; Master and Servant. 1172 GENERAL INDEX. [References are to Sections.] RAILROADS— Continued. arrest by officers of railroad company, 530. eare in movement of engines and cars with reference to employes, 637. care at points crossed by street railways, 861. contributory negligence of employes, 675. duty to warn employes at work on track, 654. fires set out by locomotives, 535-537. forms on care after discovery of perilous position of person on track, 794. care at places where persons may be expected on tracks, 785. care in operation of locomotive or train, 767. care in running trains at highway crossings, 781. care in running trains at street crossings, 782. care toward children on track, 776. collisions between trains at crossings, 793. collisions with traction engines at crossings, 784. construction of roadbeds interfering with flow of water, 764. contributory negligence of injured person, 797. contributory negligence of parents, 798. crossing injuries, 780. damages recoverable for personal injuries, 811. doctrine of discovered peril, 800. doctrine of last clear chance, 799. duty of engineer where signals not heard or heeded, 796. duty to station flagman at crossings, 775. duty to stop, look and listen, 802-804. duty to erect and maintain fences and cattle-guards, 813. duty to maintain lookout on approaching train, 774. duty to sound signals, 771-773. erroneous action of injured person placed in sudden peril, 801. evidence as to distance in which train may be stopped, 810. frightening horses by operation of trains, 791. injuries caused by escaping steam, 790. injuries due to jumping on moving cars, 808. injuries in crossing between cars in motion, 807. injuries to persons loading or unloading cars, 788. injuries to persons at work on premises of others, 789. injuries from mail cranes, 792. injuries to trespassers on railroad premises, 786. injuries to trespassers riding on engine, 787. killing animals, 812. liability for injuries based on negligence, 765. presumption of negligent operation, 768. presumption that person killed on track exercised due care, 809. proximate cause of injury, 769. relative rights of public and railroad at crossing, 777. relative rights of public and company on right of way, 778. GENERAL INDEX. 1 1 73 [References are to Sections.^ RAILROADS— Continued. right of engineer to assume that person on track will step aside in time to avoid injury, 795. right of traveler to rely on safety gates, 806. right of traveler to rely on signals of flagman, 805. speed of trains, 770. violation of law in allowing cars to block crossing, 783. wilful negligence, 766. injuries to loiterers about stations, 786. method of work about trains, 642. safety for employes, 652. tracks a proclamation of danger, 802. RAPE, assault on female, 158. form of instructions, 420. RATIFICATION, sale of pledged property, 759. signatures of notes, 191. READING INSTRUCTIONS, necessity, 62. REAL ESTATE, See Deeds ; Vendor and Purchaser. damages for injuries, 435. REAL ESTATE AGENTS, See Brokers and Factors. REASONABLE DILIGENCE, defined, 669. REASONABLE DOUBT, forms of instructions, 380. necessity for requested instruction, 97. necessity that doubt should be entertained by all jurors, 44. necessity that it rest on entire evidence, 90. repetition of instruction, 65. subject-matter of instruction, 44. REASONABLE TIME, holding train for passengers to get on, 280. RECAPITULATION, testimony in instructions, 36. II 74 GENERAL INDEX. [References are to Sections.} RECEIPTS, explanation of terms, 321. RECKLESSNESS, traveler driving on track in front of approaching street car, 872. RECOVERY BACK, payments, 743. REFUSAL, inconsistent requested instructions, 103. request for error, 101. request where matter sufficiently covered by other instructions, 102. RELATIVE RIGHTS, parties on street railway tracks, 847. RELATIVES, conveyances to relatives as fraudulent, 553. RELEASES, by attorneys, 167. forms on conclusiveness of release, 815. fraudulent representations inducing execution, 818. necessity that terms be understood by party, 816. performance of conditions, 814. validity as dependent on mental condition of releasor, 817. promise of released indorser to pay, 199. sureties, 762. RELIANCE, right of travelers to rely on safety gates, 806. RELIGIOUS SOCIETIES, disturbing religious meetings, 399. forms on compensation for work performed for church, 819. REMARKS, ordinary court remarks not instructions, 1. REMOVAL, retaining embankments, 908. RENT, See Landlord and Tenant. REPAIRS, on leased premises, 616. temporary obstruction of sidewalks in course of repair, 696. GENERAL INDEX. I I 75 [References are to Sections.] REPETITION, instructions, 64, 65. REPLEVIN, forms relating to levy on property, 820. matters to be proved, 822. ownership of property, 821. verdicts, 823. partnership property, 733. REPUTATION, duty of court to determine admissibility of evidence, 8. REQUESTS FOR INSTRUCTIONS, bare exception to charge not equivalent to request, 99. caption and form of request, 824. conclusion of party by tendered instruction, 103. duty to make timely request and tender proper instructions, 96. duty to refuse meaningless or misleading requests, 99. form and arrangement, 100. in criminal cases, 97. limitation on number, 96. modification of requested instructions, 100. necessity that requests should state complete legal proposition, 99. necessity for signature of request by counsel, 97. necessity of clear expression, 99. prayers of extreme length discouraged, 96. reduction of request to writing, 97. refusal for error in request, 101. refusal of inconsistent requests, 103. refusal of interlined or erased requests, 99. refusal where matter sufficiently covered by other instructions, 102. refusal where request in part incorrect or inappropriate, 101. where general charge indefinite or inadequate, 98. RESCISSION, building contracts, 246, 251. contract for fraudulent representation, 541. contract of purchase of real property, 892. necessity of return of consideration, 541. RESERVATION, conveyances with reservations for family of debtor, 556. RES IPSA LOQUITUR, fires set out by locomotives, 537. injuries to employes, 639. presumptive evidence of negligence in operation of elevators, 499. 1176 GENERAL INDEX. [References are to Sections.] RESISTING ARREST, See Arsest. RETIREMENT, partners, 734. RIGHT OF WAY, See Eminent Domain; Railroads. RISK, See Assumption of Risk. ROADBEDS, construction to interfere with flow of water, 764. duty of railroad to maintain safety of roadbed for employes, 652. ROBBERY, forms of instructions, 421. RULES, exceptions to instructions, 104-108. for determining competency of testator, 917. form and arrangement of instructions, 59-78. government of employes, 655. interpretation and effect of instructions, 91-95. nature and purpose of instructions, 1-3. pertinency of instructions, 79-90. province of court and jury, 4-34. requests for instructions, 96-103. subject-matter of instruction, 35-58. RULINGS, admission or exclusion of evidence not instructions, 1. S. SAFEGUARDS, at elevator shafts, 496. duty of master to safeguard machinery, 648. SAFETY, appliances and places of work for employes, 643-652. SAFETY GATES, right of travelers to rely upon, 806. SALES OF GOODS, See Vendors and Purchasers of Lands. authority of agent for purchase of goods, 138. breach of agreement of sale of partnership business, 730. GENERAL INDEX. 1 1 77 [References are to Sections.1 SALES OF GOODS— CoM/wM^-rf. contracts for sale of physician's practice, 745. damages recoverable for sale induced by fraud, SS2. forms on breach of contract, 827. breach of warranty, 832. contract of sale, 825. damages for breach of contract, 833. delivery and acceptance, 826. implied warranty, 830. proof of performance of contract, 828. proof of warranty, 831. warranty, 829. intoxicants in violation of dramshop laws, 471-483. proof of time of sale of intoxicants, 479. ratification of sale of pledged property, 759. to corporate officers, 369. SCIENTER, nature of vicious dogs, 150. SCOPE OF EMPLOYMENT, assumption of risk in work outside line of employment, 662. SEALED VERDICTS, directions not instructions, 1. SEAWORTHY, defined, 612. SEDUCTION, aggravation of damages for breach of promise of marriage, 225 forms of instructions, 422. SELF-DEFENSE, defense to civil liability for assault, 155. duty of court to define term, 40. forms of instructions, 412. necessity for requested instruction, 97. SEMAPHORES, signals at crossings, 793. SERVICES, payment of rental in services, 617. SETTLEMENT, See CoMPRomsE and Settlement. I I 78 GENERAL INDEX. [References are to Sections.] SEWERS, injuries from defective sewers, 698. nuisance, 715. SHIPPING, lien of Vessel on cargo, 265. SIDEWALKS, See Streets. aggravation of existing injury by fall on sidewalk, 691 contributory negligence of traveler, 692. damages for injuries to travelers, 697. duty of city to keep sidewalks in safe condition, 682. evidence of defects in vicinity of place where accident occurred, 690. injuries from defective sidewalks, 685-693. injuries from fall into coal hole, 707. injuries from hidden defects, 688. injuries from snow and ice, 694, 695. nature of liability of city for defective sidewalks, 686. necessity of conformity of proof to allegations of pleading injury, 689. notice to city of dangerous condition, 687. right of traveler to assume safety, 693. temporary obstruction in course of repair, 696. SIGNALS, at farm crossings, 772. duty of engineer where signals not heard or heeded, 796. duty of motorman to signal, 853. duty of railroad company to sound, 771. duty to sound warnings to railroad employes at work on track, 654. effect of knowledge of approach of train though no signals sounded, 773. effect of unauthorized signal to start train, 295. right of traveler to rely on signals of crossing watchmen, 805. semaphore signals at crossings, 793. use by bicyclist, 576. SIGNATURES, See Alteration of Instruments. notes, 191-193. SIGNING INSTRUCTIONS, necessity, 61. SILENCE, acquiescence in account stated, 116. SILENT PARTNERS, liability, 729. GENERAL INDEX. 1^79 [References are to Sections.} SLANDER AND LIBEL, forms on criminal libel, 844. charges of immorality, 839. damages, 843. essentials of slander or libel, 834. evidence to sustain charge, 840. jury as judges of law of libel, 842. justification, 837. malice, 835. mercantile reports, 838. presumption of good character, 841. privileged communications, 836. SNOW, cause of delay in transportation, 261. injuries caused by snow on tracks, 863. injuries from snow on sidewalks, 694, 695. SPARK ARRESTERS, care in maintenance, 536. SPECIAL FINDINGS, instructions, 78. SPECIALISTS, care to be exercised by medical specialist, 748. SPECIAL VERDICTS, instructions, 58. SPECULATION, dufy of jury to avoid speculation as to testimony, 308. SPEED, excessive speed on highways, 572. operation of automobiles, 172. railroad trains, 770. street railway cars, 851. SPEED ORDINANCES, presumption of traveler's knowledge, 83. SPRINGS, right in water, 903. STAGE MANAGERS, contracts of employment, 343. STATEMENTS, weight of statements of accused, 938. Il80 GENERAL INDEX. [References are to Sections.} STATUTE OF LIMITATIONS, meaning of term, 123. question for jury in criminal cases, 14. STATUTES, construction of domestic statutes by court, 7. proof of law of foreign country, 7. reading from statutes to jury, 68. STEAM, injuries caused by steam escaping from locomotive, 790. STOCK, issuance of certificates to pledgee, 758. pledge of corporate stock, 758. STOCK BROKERS, contracts, 231. STOCK PENS, duty of carrier to furnish, 259. STOP, LOOK AND LISTEN, at what point duty to be performed, 803. duty of travelers at railroad crossings, 802. duty of travelers on street railway tracks, 871. tracks a proclamation of danger, 802. view of crossing obstructed, 804. STORAGE, lien for storage charges, 901. mixture of grain, 898. right to storage charges, 900. STREET RAILROADS, See Carriers of Passengers. duty to equip cars with gongs, 850. forms on accidents caused by snow and ice on tracks, 863. burden of proof of negligence, 866. care at railroad crossings, 861. care to be exercised after seeing person in dangerous position, 856. care to be exercised in operation of cars, 848. care toward frightened horses, 859. collisions with runaway teams, 860. contributory negligence, 867, 868. damages recoverable for injuries, 873. doctrine of discovered peril, 870. GENERAL INDEX. II81 [References are to Sections.] STREET RAILROADS— Cow^JHM^rf. duty of motorman to keep lookout, 852. duty of motorman to keep car under control, 849. duty of motorman to signal, 853. duty of operatives toward children, 857. duty of traveler to look and listen, 871. duty to equip cars with efficient brakes, 846. duty to equip cars with fenders, 845. imputed negligence of parents of children, 869. injuries caused by tracks above street grade, 862. injuries due to reckless driving on tracks in front of approaching cars, 872. injuries to animals, 858. presumption of negligence, 865. relative rights of parties on tracks, 847. right of motorman to assume that traveler will leave track, 854. right of motorman to assume that vehicle will not be driven in front of car, 855. speed of cars, 851. violation of ordinances, 850. wanton injuries, 864. injuries from excavations along street car tracks, 708. relative rights of auto and street car, 847. violation of ordinance as to stopping places, 301. STREETS, See Sidewalks. care in running trams at street crossings, 782. changes of street grades, 681. contributory negligence of travelers, 683. damages for injuries to travelers, 697. duty of city to keep streets in safe condition, 682. duty of extra care in running trains along streets, 782. injuries due to tracks projecting above street grade, 862. injuries from snow and ice on sidewalks, 694, 695. injuries to persons on streets from wires, 875. relative rights of public and company on tracks laid in streets, 779. right of pedestrian to assume legal use of streets by other travelers, 684. rights of telegraph and telephone companies in streets, 874. SUBAGENTS, compensation for sale of land, 237. SUBJECT-MATTER OF INSTRUCTIONS, alibi, 56. circumstantial evidence, 46, 47. Il82 GENERAL INDEX. [References are to Sections.] SUBJECT-MATTER OF INSTRUCTIONS— Continued. confessions in criminal cases, 50. credibility of witnesses, 52, 53. definition of terms, 39, 40. failure of party to testify, 54, 55. good character of accused, 45. insanity of accused, 43. instruction to disregard testimony erroneously received, 57. limitation of purpose of evidence, 41. lower grade of offense, 42. pertinency of instructions to issues and evidence, 35. positive and negative testimony, 48. presumptions from flight, 49. presumptions of innocence, 51. reasonable doubt, 44. recapitulation of testimony, 36. special verdicts, 58. theories of case, 37, 38. SUBMISSION, claim of parties to account stated, 117. SUBSCRIBING WITNESSES, wills, 911. SUBSCRIPTIONS, application of bonus given by citizens, 366. defenses to actions for unpaid, 365. notice of charters to subscribers, 364. SUDDEN PERIL, • effect of erroneous action of injured person placed in sudden peril, 801. SUMMING UP EVIDENCE, by court, 11. SUPERINTENDENCE, mining operations, 680. SURETY, See Principal and Surety. SURFACE WATERS, diversion, 905. SURRENDER, pledged certificates of stock, 758. presumptions from surrender of defendant to authorities, 378. GENERAL INDEX. 1 1 83 [References are to Sections.] SURGEONS, See Physicians and Surgeons. SURVIVAL STATUTES, damages for wrongful death, 461. SYMPATHY, cautionary instructions, 34. consideration in action for breach of marriage promise, 223. duty to avoid applies in instructions, 77. duty to disregard in making award of damages, 429. T. TACKING POSSESSIONS, adverse possession, 130. TAX TITLES, construction by court, 7. TELEGRAPHS AND TELEPHONES, forms on breakdown of wires as excuse for delay in transmission, 883. damages for negligent transmission of message, 886. duty to accept messages without discrimination, 878. erroneous transmission of messages, 882. exemplary damages, 887. general duty of care in transmission or delivery of messages, 880. injuries to persons in highways, 875. injuries to property from defective wiring or insulation, 877. mental anguish as element of damages, 888. negligent delivery of messages, 884. objects in highways which tend to frighten horses, 876. rights in highways, 874. right to fix office hours, 879. sufficiency of sendee's address, 885. taking messages over telephone, 881. TELEPHONES, See Telegraphs and Telephones. TENDER, duty to tender proper instructions, 96. TERMINATION, leases, 621. 1 184 GENERAL INDEX. [References are to Sections.1 TESTAMENTARY CAPACITY, delusions of testator, 920. drunkenness of testator, 923. eccentricities of testator, 921. effect of old age, 922. evidence on question, 925. general rules for determining, 917. insanity of testator, 919. meaning of disposing mind and memory, 918. monomania of testator, 920. presumptions and burden of proof, 924. TESTAMENTARY INTENTIONS, declarations, 914. THEATERS, performances given without license, 424. THEFT, See Burglary; Embezzlement; Larceny; Robbery. THEORIES, function of court to state theories of parties, 5. necessity of request for instruction on theories of case, 96. subject-matter of instructions, 37, 38. THIEVES, credibility as witnesses, 949. THREATS, arrest by putting person in fear by threats, 532. defense to homicide, 411. foundation for admissibility of testimony, 8. necessity for requested instruction, 97. THRESHING ENGINES, setting out fires, 534. TIME, accrual of claims against estates, 463. acquiescence in account from lapse of time, 115. presumption of payment from lapse of time, 741. proof of time of sale of intoxicants, 479. TIMELINESS, objections to instructions, 105. requests for instructions, 96. GENERAL INDEX. Il8S [References are to Sections.} TITLE, accretions, 119. necessity that plaintiff rely on strength of own title, 129. ownership of automobile, 175. taken by devisee, 916. TORTS, comments and expressions of opinion, 23. TRACTION ENGINES, collisions at railroad crossings, 784. TRANSMISSION, breakdown of wires as excuse for delay in transmission of messages, 883. care in transmission of telegraph messages, 880. erroneous transmission of messages, 882. TRAVELERS, See Carriers ; Highways ; Railroads. TRESPASS, committed by cattle, 152. injuries to trespassers on railroad premises, 786. riding on engines, 787. TRIAL, view of premises by jury in condemnation proceedings, 515. TUNNELS, damages for injuries in construction, 121. U. UNDERSCORING INSTRUCTIONS, practice condemned, 72. UNDUE INFLUENCE, attorney over client executing will, 931. child over parent in execution of will, 929. effect on validity of will, 927. evidence on question in execution of will, 934. execution of will, 926. question for jury, 15. over aged persons in executing will, 932. persons occupying confidential relations with testator, 928. physician over patient executing will, 930. presumptions and burden of proof, 933. 75 — Branson's Inst. ii86 GENERAL INDEX. [References are to Sections.] UNDUE PROMINENCE, particular features or matters of evidence, 72, 73. V. VALUE, See Damages. methods of determining value of real property, 894. methods of estimating value of mining labor, 679. VARIANCE, between testimony in and out of court, 957. conformity of proof and allegations of injury from defective side- walks, 689. conformity of proof to pleadings .in master and servant actions, 676. recovery limited to negligence alleged in pleadings, 710. VENDORS AND PURCHASERS OF LANDS, See Fraud. false representations and reliance thereon in sale of lands, 542. forms on acceptance of deed, 890. good faith purchasers, 891. damages for breach of contract, 893. methods of determining value of property, 894. rescission of contract of purchase, 892. sale of leased premises by landlord, 619. VENUE, function of court and jury, 8. necessity for request for instruction on subject, 97. proof question for jury, 14. VERBAL STATEMENTS, care in consideration by jury, 521. VERDICTS, direction, 9, 10. direction to return sealed verdict not instruction, 1. directions as to form not instructions, 1. finding of guilt against more than one defendant, 390. fixing punishment for homicide, 413. forms, 895. in replevin actions, 823. setting out evidence in instructions to support, 89. special, 58. GENERAL INDEX. 1 1 87 [References are to Sections.l VICE PRINCIPAL, See Fellow- Servant Doctkine. conductor, 665. VICIOUS DOGS, injuries inflicted on travelers, 149, ISO. W. WAITING-ROOMS, care in maintenance, 278. WAIVER, objections and exceptions, 108. WANTON INJURIES, street raiWays, 864. WAREHOUSEMEN, forms defining term, 896. forms on care demanded of warehousemen, 897. liens for storage charges, 901. loss of goods by fire, 899. mixture of grain in storage, 898. WARNINGS, disregard of warnings by servant as contributory negligence, 668. duty to warn railroad employes at work on tracks, 654. youthful and inexperienced workmen, 653. WARRANTS, arrest on void process, 528. arrest without warrant, 527. WARRANTY, breach of covenant, 470. breach of warranty of goods sold, 829, 832. , implied warranty of goods sold, 830. hired machinery, 178. proof, 831. WATCHMEN, right of travelers at railroad crossings to rely on signals, 805. WATERS, consideration of value of spring on condemned land, 513. construction and maintenance of bridges, 227-229. construction of roadbeds interfering with drainage and flow of water, 764. 1 1 88 GENERAL INDEX. [References are to Sections.] WATERS— Continued. contracts for water for crops, 341. damages recoverable for interference with flow, 435. embankments obstructing flow of water, 699. forms covering accretions, 118, 119. dams, 907. forms on diversion of waters, 90S. interference with percolating waters, 902. navigable waters, 904. obstruction of water courses, 906. removal of embankment, 908. springs, 903. high and low water mark as boundary, 211, 212. injuries from defective sewers, 698. instructions in prosecution for obstructing flow, 417. ponds as nuisance, 719. WEIGHT OF TESTIMONY, dependent on demeanor of witnesses, 941. exclusively for jury, 938. interested witnesses, 939. prejudiced witnesses, 940. WHISTLES, duty of railroad companies to sound signals, 771-773. WILD ANIMALS, fright of horse at caged animals, 153. WILD LANDS, adverse possession, 132. WILFUL, duty of court to define term, 40. WILFUL INJURIES, street railway accidents, 864. WILFUL NEGLIGENCE, defined, 766. instructions, 702. WILLS, argumentative instruction, 75. construction by court, 7. forms on agreement to provide in will for payment of services, 915. attestation, 911. burden of proof of forged wills, 937. declaration of testamentary intentions, 914. GENERAL INDEX. 1 189 IReferences are to Sections.] WILLS — Continued. delusions and monomania, 921. drunkenness as affecting testamentary capacity, 923. eccentricities as affecting capacity to execute, 921. effect of old age on testamentary capacity, 922. effect of undue influence, 927. evidence of genuineness, 913. evidence on question of testamentary capacity, 925. evidence on question of undue influence, 934. execution, 910-912. forged wills, 937. inequality of division by testator, 935. ingredients of undue influence, 926. insanity of testator, 910. presumptions and burden of proof of testamentary capacity, 924. presumptions and burden of proof of undue influence, 933. proof of execution, 912. testamentary capacity, 917-925. title taken by devisee, 916. undue influence, 926-934. undue influence of attorney over client, 931. undue influence of child over parent, 929. undue influence of persons occupying confidential relations, 928. undue influence of physician over patient, 930. undue influence over aged persons, 932. violation of natural justice in making distribution, 936. forms setting out meaning of disposing mind and memory, 918. rules for determining testamentary capacity, 917. proof of execution, 912. WIRES, See Electricity. breakdown as excuse for delay in transmission of messages, 883. injuries to property from defective wiring, 877. WITHDRAWAL, erroneous instructions, 95. WITNESSES, See Evidence. accused as witness in his own behalf, 383. credibility as subject-matter of instructions, 52, S3. credibility of corroborating or contradictory evidence, 30. credibility of interested witnesses, 32. demeanor of witnesses in criminal cases, 387. duty of court to define term "'successfully impeached," 40. ligO GENERAL INDEX. [References are to Sections.'i "WITNESSES— Continued. duty of court to point out effect of witnesses' interest, 52, 53. duty to call physician as expert witness, 750. duty to call physician as witness, 751. effect of failure to call material witness, 222, 523. execution of wills, 911. forms authorizing disregard of unimpeached testimony, 955. forms on attorneys as witnesses, 946. colored persons as witnesses, 947. confessed thieves as witnesses, 949. credibility of witnesses and weight of testimony as exclusively for jury, 938. detectives as witnesses, 948. disregard of testimony false in part, 950. duty to reconcile contradictory testimony, 958. dying declarations, 952. effect of impeachment, 954. employes as witnesses, 943. ex-convicts as witnesses, 950. expert witnesses, 945. husband or wife as witnesses for each other, 944. immunity to witness, 951. impeachment of witnesses, 953. interested witnesses, 939. means of information of witnesses, 942. prejudiced witnesses, 940. right to consider demeanor of witnesses, 941. testimony of witnesses by deposition, 959. variance between testimony in and out of court, 957. impeachment a question for jury, 14. necessity for requested instruction on subject, 97. presumptions from failure to call material witness, 54. testimony before examining magistrates, 385. undue prominence to testimony, 73. WORK AND LABOR, See Master and Servant. agreement to make provision in will for payment of services, 915 compensation for work performed for church, 819. implied contracts to pay for services, 337. methods of estimating value of labor in mines, 679. payment for services rendered parent by child, 725. WRECKS, injury to passenger in attempt to escape threatened wreck, 283. GENERAL INDEX. I I9I [References are to, Sections.'] WRITTEN INSTRUCTIONS, mandatory, 60. necessity, 60. WRONGFUL ATTACHMENT, damages, 161, 162. X. X-RAYS, use of machine by physicians, 752. YARDS, right of railroad to unobstructed use of tracks in yards, 785. Sl^TRTiffTiy i!K'''