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we perceive no reason why, in a proper case, baker Company by an independent contract a trust might not be impressed upon a con- after it had repudiated the contract made tract or lease, as well as upon other property. with Holt and which he had assigned to LinSecond, it is claimed the complaint fails to ney. As to this the court, in effect, found show that prior to Linney's acquiring the that upon Linney presenting the assignment automobile and contract of purchase he had to the company it, in writing, recognized and knowledge of plaintiff's rights therein. In approved the assignment; whereupon Linney the absence of a special demurrer, we think paid the installments thereon then due; that the allegation that the assignment was made thereafter the company, having knowledge to him by Holt without consideration and that the $625 paid to it by Holt was plain"after knowledge by said Linney that said tiff's money, and after the assignment made automobile had been purchased with plain- to Linney with its approval, attempted to tiff's money and funds as aforesaid," was a rescind the contract after Holt had assignsufficient showing of the fact. The words "ased the same to Linney who had, by reason of aforesaid” refer to the fraudulent acts of said assignment, paid the arrearage. The Holt by means whereof he obtained the mon- finding is sufficient to negative the allegation ey and invested it in the automobile, all of made in the answer, which, it is alleged, was known to Linney. [7] Appellant attacks as being without sup

[3] It is next claimed that the judgment is port a number of findings based upon and in not supported by the findings, in that it ap- accordance with facts, which the evidence peared that after Linney acquired the con- and fair inferences to be drawn therefrom tract upon which Holt had paid the $625, tended to prove. The evidence tends to eshe paid thereon $260, and the judgment ac- tablish the fact that appellant, when he accorded plaintiff a lien thereon for her $625 quired the assignment from Holt, knew the which was declared prior to any rights of manner in which the latter had obtained Linney by reason of the $260 so paid by him. plaintiff's money, and knew that he had Since Linney took the contract with knowl- wrongfully and in violation of the trust reedge of plaintiff's rights thereunder, his posi- posed in him invested $625 thereof in the tion as to money loaned or paid thereon must automobile, upon which there were some inbe deemed that of a second lienor, just as if stallments due and unpaid. Linney, accomhe had a second mortgage on the property. panied by Holt, went to the office of the Stu

[4, 5] Defendant Linney appeared in court debaker Company, the seller of the car, by an attorney of record, who conducted his where the assignment of the contract was case to a point in the proceedings where de- made, Linney stating that he desired to get fendant Linney proposed to cross-examine the car the possession of which it appears one of plaintiff's witnesses; whereupon, it Holt had theretofore delivered to the comappearing that he would be a witness in his pany. Upon the making of the assignment own behalf, the court denied him the right to and Linney paying the installments then due cross-examine the witness. Thereupon his and unpaid, the company indorsed thereon, attorney of record continued the conduct of "We, the Studebaker Company, consent to the case, cross-examining the witness. It is the assignment, and fully release Mr. Holt claimed this was reversible error. Had ap- hereunder,” signed by William J. La Casse, pellant had no attorney of record represent- sales manager, and thereupon delivered the ing him, no doubt exists as to his right to automobile to Linney. Several days afterappear in propria persona and conduct his wards, all the parties ignoring this comcase, and notwithstanding the incidental in- pleted transaction, made a new deal which convenience, he could also have appeared as purported to cancel the contract so assigned a witness. But where a party appears in by Holt to Linney and pursuant to which court as a litigant represented by an attor- the company had delivered the car to Linney, ney of record, the court may insist that such and a new contract was made direct with attorney and not his client, appearing as a Linney which, so far as it concerned the party litigant only, conduct the trial. Boca, amount, terms, and conditions, was identical etc., R. R. Co. y. Superior Court, 150 Cal. with the terms and conditions contained in 153, 88 Pac. 718. Indeed, courts have not in the contract made with Holt and by him asfrequently insisted that where more than one signed to Linney. The company recognized attorney appears, one only shall conduct the the existence of its contract with Holt and examination of witnesses. But, however this his right to assign the contract, pursuant to may be, and conceding the ruling was er- | which it delivered the car to Linney and reror, it is impossible to perceive how defend-leased Holt from further liability thereon. ant was prejudiced thereby, and hence it may The court was justified, under all the cirbe disposed of by applying thereto the provi- cumstances, in its conclusion that this was a sions of section 412, article 6 of the Consti- mere subterfuge. tution.

The judgment, which appears to be a right[6] There is no merit in the contention that eous one, and the order denying appellant's the court failed to find upon an issue ten- motion for a new trial are affirmed. dered by the answer, to the effect that ap

therein, except the usual wear occasioned by the ST. LOUIS & S. F. RY. CO, v. CLAMPITT.* elements. (No. 5148.)

[Ed. Note.-For other cases, see Master and

Servant, Cent. Dig. $$ 913–927, 932; Dec. Dig. (Supreme Court of Oklahoma. Nov. 30, 1915. 270.1

Rehearing Denied Jan. 11, 1916.) 7. INSTRUCTIONS.
(Syllabus by the Court.)

The charge in this case examined, and

found free from error. 1. APPEAL AND ERROR 971-DISCRETIONARY ACTS – EXAMINATION OF WITNESS

8. TRIAL 260_REFUSAL OF INSTRUCTIONS

COVERED.
QUESTIONS BY JUDGE.
The practice of the trial judge taking

Where special instructions are requested, charge of a witness, and conducting a long

which are fairly covered by the charge, it is not cross-examination, is not to be commended. Still

error to refuse to give them, it is the duty of the judge to see that the facts

[Ed. Note.-For other cases, see Trial, Cent. are brought out; and, unless it is apparent that

Dig. $8 651-659; Dec. Dig. Can 260.) there has been an abuse of discretion, and that 9. TRIAL 349-SUBMISSION OF SPECIAL INthe trial judge has shown his belief in the un TERROGATORIES-RIGIlt. truthfulness of the witness, or has given an in Under the provisions of article 7, § 21, of timation of his opinion on the facts, it is not | the Constitution, defendant is not entitled to prejudicial error.

have special interrogatories submitted to the · [Ed. Note. For other cases, see Appeal and jury, in addition to the general verdict. Error, Cent. Dig. 88 3852–3857; Dec. Dig. Om [Ed. Note.-For other cases, see Trial, Cent. 971.]

Dig. $S 822, 823, 827; Dec. Dig. 348.) 2. MASTER AND SERVANT 265, 285-INJURY 10. MASTER AND SERVANT Om 297-DEATH OF

TO EMPLOYÉ-NEGLIGENCE-PRESUMPTION. SERVANT-ACTION UNDER EMPLOYERS' LIA: The mere happening of an accident to anBILITY ACT-APPORTIONMENT OF DAMAGES. employé does not raise a presumption of neg Under the provisions of Employers' Liabililigence, but where an accident happens to an ty Act April 22, 1908, c. 149, 35 Stat. 65 employé resulting in his death, the manner of (U. S. Comp. St. 1913, $$ 8657-8665), the jury the occurrence and its surroundings may be may return a general verdict in favor of the shown, from which the jury may infer the man- | personal representative, and need not apportion ner and cause of the accident, if the inference is the damages among the beneficiaries. a reasonable one.

[Ed. Note.-For other cases, see Master and [Ed. Note. For other cases, see Master and Servant, Cent. Dig. $$ 1195–1198; Dec. Dig. Servant, Cent. Dig. 88 877–908, 955, 1002, 1003, 297.] 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. 265, 285.]

Commissioners' Opinion, Division No. 2. 3. MASTER AND SERVANT C 285–INJURY TO

Error to District Court, Garfield County ; BRAKEMAN-CAUSE OF ACCIDENT-QUESTION James W. Steen, Judge. FOR JURY.

Action by Amanda V. Clampitt, adminisWhere the evidence tends to show that a brakeman was killed by falling under a moving train. from which he had alighted in the per estate of B. F. Clampitt, deceased, against formance of a duty, and there was evidence that the St. Louis & San Francisco Railway Comthe platform on which he alighted was defective pany, a corporation. Judgment for plaintiff, in a manner that might have caused him to fall under the train, the question was properly left

and defendant brings error. Affirmed. to the jury, although there was no direct evi This was an action brought by the defenddence that the condition of the platform caused

ant in error as administratrix of the estate him to fall. [Ed. Note.--For other cases, see Master and

of B. F. Clampitt, deceased, for damages Servant, Cent. Dig. $$ 1002, 1003, 1007, 1008, resulting in the death of her intestate, by the 1016, 1035, 1043, 1053; Dec. Dig. Om 285.) negligence of the defendant, and the action 4. TRIAL 169 — DIRECTION OF VERDICT is brought under federal Employers' LiaEVIDENCE..

bility Act April 22, 1908, c. 149, 35 Stat. 65 It is only when the evidence, with all the (U. S. Comp. St. 1913, 88 8657–8665). The peinferences that the jury can reasonably draw therefrom, is insufficient to support a verdict

tition is in the usual form, alleging that the that the court is authorized to direct a verdict plaintiff in error is a railroad corporation, for the defendant.

engaged in interstate commerce, and that the [Ed. Note. For other cases, see Trial, Cent.

intestate was a brakeman on a certain train Dig. $$ 341, 381-387, 389; Dec. Dig. Ow169.]

which was carrying interstate shipments. 5. MASTER AND SERVANT 274 - DEATH OF The negligence on which the case was tried BRAKEMAN-EVIDENCE OF CUSTOM. Evidence that it was the habitual practice

was that a platform at the station of Thomof brakemen at stations to alight from moving as, Okl., on the line of the road of the plaintrains in the performance of their duties is ad- tiff in error, was defective, and when the missible, especially when it is shown that it is plaintiff's intestate attempted to alight from in practical to perform such duties without get

the train at that point, owing to the defective ting on and alighting from moving trains. [Ed. Note.-For other cases, see Master and

condition of the platform, he fell under the Servant, Cent, Dig. 88 939–949; Dec. Dig. Om cars of the train, and received injuries which 274.)

resulted in his death. The answer was a genC. MASTER AND SERVANT 270-INJURY TO eral denial, and alleges contributory negli

BRAKEMAN – EVIDENCE-SUBSEQUENT CON- 1 gence, assumption of risk, and also pleads cerDITIONS.

tain rules of the plaintiff in error, regulating Evidence of the condition of a platform three weeks after the accident is admissible the conduct of its employes. when it is shown that no change has been made The evidence on the part of the plaintiff

the

rsona

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

disclosed that the plaintiff's intestate was a they are employed and retained with the express brakeman on the freight train, engaged in understanding and agreement that, in considerinterstate commerce, and that on arriving

ation of the compensation paid them, they will

assume all risks of injury, which may result to at the station of Thomas, he was riding on them by reason of any act, negligent or otherthe engine; that arriving at Thomas, pre wise, done by any person employed by the comparatory to taking water, he alighted from

pany in the operation or maintenance of its the engine at the station of Thomas for the

railway, regardless of what department or line

of service such person may be engaged in. purpose of examining the records in the bill "Rule No. 631. Each employé is required to box, to see if there were any cars at Thomas be responsible for his own safety, as well as to which the train on which he was employed

exercise the utmost caution to avoid injury to

his fellows. Employés of every rank and grade was required to take up and carry forward

are wanted to see for themselves before using in transit so as to get to their destination. them that the rolling stock, machinery or tools The evidence further showed that the plat which they are required to use are in safe condiform at this place was a timber platform,

tion or that they are so put before using.

Rule No. 632. The company does not require which had been constructed in 1902, and was

or expect its employés to incur any risk from about 14 inches above the rails at this point; which, by the exercise of their judgment and that the planks at this place where the plain

personal care, they can protect themselves, but

enjoins upon them and demands that they shall tiff's intestate alighted were some of them

take time and use the means necessary to, in all rotted, and had holes in them, and that there cases, do their duty in safety. were some nails at this point protruding "Rule No. 636. It is alike dangerous to asabove the surface of the platform, one of

sume that signals given to the engineman or

fireman have been seen, and if seen will be them as much as an inch and a half. There

obeyed-when obedience to those signals on the was also evidence that the planks in the plat part of the engineman or fireman is essential form would spring when a person trod upon it

n would soring when a person trod unon I to the safety of an employé in the performance them, as much as an inch and a half, which

of his duty. He must know that the signal has

been seen, understood and obeyed, before placing was caused probably by the stringers or himself in a dangerous position--otherwise, withsleepers under the platform being rotten. out such knowledge he assumes all risks of danThere was also evidence that the life of a ger arising from any misunderstanding or dis

regard of signals. platform of this character was from 10 to

"Rule No. 637. Employés are forbidden to 12 years, and that this platform had been stand on track and jump on engine or cars as erected in 1902, and the accident occurred they approach them, and are warned not to in January. 1912. There was no direct evi. / jump on or off trains or engines moving at a

high rate of speed or to go between cars in modence as to how the plaintiff's intestate fell

tion to uncouple them, or to follow other danunder the train, the evidence on the part of | gerous practices." the plaintiff tending to establish that it was After the evidence was in, the court chargon account of the defective condition of the ed the jury, and among its instructions explatform, by striking his foot against a cepted to are the following: protruding nail, or by reason of the spring in “(4) You are instructed that under the federthe platform, or by reason of some of the al law it is further provided that any contract, s in the platform being higher than rule, regulation or device whatsoever, the pur

pose or intent of which shall be to enable any others; that is, some thicker planks than

common carrier to exempt itself from liability those used in the platform had been placed from negligence of the kind here charged by the there in repairing it, which caused its sur plaintiff against the defendant, shall to that exface to be elevated above the general level of

tent be void; but you are instructed that if, in

fact, the said B. F. Clampitt knew, or by the use the platform. The evidence of the defendant

of ordinary care should have known, of the tends to contradict this evidence, and to show risks and hazards in question that resulted in that the platform was in good condition; his injury or death, if any, then the plaintiff that there were no protruding nails, and

could not recover. Nor could she recover if

Clampitt's death resulted from the ordinary danthat the cause of the fall of the plaintiff's

gers of his occupation, as these risks he assumintestate was that he lost his balance in ed; but any peril due to the neglect and carealighting from the engine, and reeled along

lessness of the defendant and of which the said the platform for some 30 feet until he fell

Clampitt could not learn by the use of ordinary

care were not assumed by him. between the cars. The plaintiff in error also "No. 5. Before you can find for the plaintiff it introduced its rules, which, as far as it must appear from the evidence that the said B. pleads them, and therefore as we assume,

F. Clampitt did not assume, as herein explained,

any of the risks or dangers that resulted in his are germane to the questions, are as follows:

injury and death, and that at the time of such

injury and death, the said B. F. Clampitt was "General Notice.

injured and killed as the result of a defective "To enter or remain in the service is an as platform of defendant's as charged, while assistsurance of willingness to obey the rules.

ing the defendant railroad company in carrying "Obedience to the rules is essential to the safe-on interstate traffic, that is, traffic between one ty of passengers and employés, and to the pro or more states, and in maintaining and operattection of property.

ing an interstate railway belonging to defend"Employés in accepting employment assume ant; that is, a railway extending continuously its risks.

from one state to another, including the state of “Rule No. 630. All persons entering into or Oklahoma, and upon which the defendant was remaining in the service of this company are engaged in carrying on an interstate business warned that the business is hazardous, and that as charged.” in accepting or retaining employment they must “No. 2. You are instructed that by virtue of assume the ordinary risks attending it. Their an act relating to the liability of common car

pla

the Senate and House of Representatives of the ous, and he adopts the dangerous way and is United States of America, it is provided that injured, he is held to have assumed the risk of every common carrier by railroad, while engaged being injured thereby, and cannot recover. If in commerce between any of the several states you believe from the evidence in this case, thereof the Union, shall be liable in damages to any fore, that the deceased had two ways of perperson suffering injury while he is employed by forming his work at the station of Thomas on such carrier in such commerce, or in case of the the day he was injured, one of them comparadeath of such employé, to his or her personal rep- tively safe and the other dangerous, and that he resentative, for the benefit of the surviving wid adopted the dangerous way and was thereby ow or husband and children of such employé, for injured, then the plaintiff is not entitled to resuch injury or death resulting in whole or in cover herein and your verdict must be for the part from the negligence of any of the officers, defendant." agents, or employés of such carrier, or by reason

At the close of the evidence the plaintiff reof any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, quested certain special interrogatories to be track, roadbed, works, or other equipment; and submitted to the jury in addition to their it is further enacted that the fact that the em general verdict, which was refused and exployé may have been guilty of contributory neg. ligence shall not bar a recovery, but the damages

ceptions saved. (in case of plaintiff's recovery) shall be diminish W. F. Evans, of St. Louis, Mo., and R. A. ed by the jury in proportion to the amount of negligence attributable to such employé. Now,

Klienschmidt and J. H, Grant, both of Oklaso far as the foregoing law applies to the rights homa City, for plaintiff in error. J. D. Housof plaintiff to recover herein, you are instructed ton and C. H. Brooks, both of Wichita, Kan., that the railway company was required to use and C. H. Parker and P. C. Simons, both of ordinary care to furnish its employés a reasonably safe place in which to perform their work: / Enid, for derendant in error. and, in this connection, you are instructed that, if you find from a preponderance of the evidence DEVEREUX, C. (after stating the facts as that at the time and place of the alleged injury to and death of the said B. F. Clampitt, the de

above). [1] The first assignment of error is fendant's said depot platform at Thomas, Okl., that, owing to irregularity in the proceedings was, and for some weeks prior thereto had been, and conduct of the court, the defendant was to the knowledge of the defendant, defective and

prevented from having a fair trial. This asursafe for ordinary use by defendant's brakeman and employés while rightfully engaged in the signment of error is based on the cross-examperformance of their duties, because of loose ination of several of the defendant's witnessboards therein, containing rotten places and pro- l es by the court, but it is not necessary to set truding nails at the particular places in ques- the

the cross-examination out at large. But we tion, as charged, and that the defendant was negligent, as charged, in so maintaining said plat. are not prepared to say that it constitutes reform in said condition, and that such negligence versible error. The practice of the trial directly, proximately, and materially contribut- court taking charge of a witness and indulged to the death of said Clampitt, as charged, then you may find for the plaintiff and against

ping in a long cross-examination is not to be the defendant, subject, however, to all of the commended. In N. Y. Transportation Co. other instructions herein given you."

v. Garside, 157 Fed. 521, 85 C. C. A. 285, it is The plaintiff in error also requested the held: following instructions, which were refused, "It must be admitted that a continual interand their refusal is assigned as error:

position by the trial judge in the examination of

witnesses may prejudice the jury to the extent “One who voluntarily enters the employ of

claimed. Still the trial judge has a right, and, another assumes all of the ordinary risks in

indeed, it is his duty, to see that the facts of cident to such employment and if injured while

the case are brought intelligibly to the attenso employed by reason of a risk assumed, he can.

tion of the jury, and to what extent he will innot recover; neither can his personal represen

terfere, for this end is a matter of discretion." tative recover in the event of his death."

"In entering the employ of the defendant, the In commenting on this case in Berwinddeceased impliedly agreed, aside from his writ- White Coal Mining Co. v. Firment, 170 Fed. ten agreement, to assume all of the risks inci- .

151, 95 C. C. A. 1, the Circuit Court of Apdent to his employment as a brakeman. If the station platform at Thomas was in a defective

as in a defective peals for the Second Circuit, says: condition at the time the deceased was injured "We found no abuse of discretion in that case. and he knew of its being in such condition, or in the case at bar the cross-examination by the by the exercise of ordinary care he should have court was much more extended, and, presumably known of such condition, and he voluntarily through some errors either in the stenographic remained in the service of defendant, then he report or in its transcription into the case on assumed the risk of being injured therefrom and, appeal, there are passages where it is difficult if injured while so employed, the plaintiff here- to tell whether a particular statement is made in cannot recover.".

by a witness in response to the court's questions, "In this connection, gentlemen of the jury, or is a summary by the court of what he underyou are further instructed that, even though stood the witness to have already testified to. you believe that the station platform at Thomas Nevertheless, on a careful study of the record, was defective, and believe that the defendant we do not feel warranted in reversing on this was negligent in the maintenance of same, still i exception. It may be proper, however, to exyour verdict should be for the defendant unless pand somewhat the statement made in the Garyou find, by a fair preponderance of the evidence, side Case Cases occasionally present themthat the negligence of the defendant, with re- selves where a plaintiff or defendant is represpect thereto, was the direct and proximate sented by incompetent counsel, and where the cause of the death of deceased. You cannot re-ends of justice require the trial judge to secure, turn a verdict against the defendant upon mere so far as he can, a fair and full presentation speculation or conjecture-your verdict must be of the case, so that the party who came into the based upon the facts disclosed by the evidence." court, expecting to have a full, fair, and just ex

"You are further instructed that if a servantamination of the facts in controversy, will find has two ways of performing his work. one a his expectation realized. But where a party is

and oral argument demonstrate this plaintiffed therewith and there is no direct proof as to was-it would seem that the conduct of his side how the accident occurred, the manner of its ocof the case had better be left to his own coun-currence may be shown by circumstantial evisel. It is not unreasonable to assume that such dence from which the jury may infer the mancounsel's study of the case and the information ner and cause of the accident if the inference he possesses as to the personal equation of the is a reasonable, although not" a necessary, one. different witnesses called against his client may

| And this case was affirmed on writ of ermake him a more competent cross-examiner than the trial judge, who never knew of the issues in ror by the Supreme Court of the United States the case till the pleadings were opened., Indeed, in 212 U. S. 159, 29 Sup. Ct. 270, 53 L. Ed. it might sometimes happen that a well-laid plan

453. In Hayes v. Williams, 17 Colo. 465, 30 to discredit a hostile and unfair witness would be disarranged and rendered futile by premature Pac. 352, it is held that what is the proxcross-examination. The safer course would seem imate cause of an injury, whether it be the to allow the examination by counsel—direct,

original negligence of one party or the incross, redirect, and recross-to conclude, and then, if anything is obscure, if some point seems

termediate negligence of another party, is to be overlooked, or if suspecting false swearing, ordinarily a question for the jury, to be de* . the judge can, and indeed ought to, in- I termined from the minor associated facts

and tervene so that the ends of justice may be sub

circumstances. In Booker Tobacco Co. v. served. Where, however, he takes the crossexamination out of the hands of competent coun Walker, 38 Okl. 47, 131 Pac. 537, it is held: sel, there is danger that the jury, from this fact

"It is only when the evidence, with all the inalone, may draw conclusions unfavorable to the

ferences that the jury could * * * draw witness and to the party on whose behalf the

from it, will be insufficient to support a verdict witness is called.”

for plaintiff that the court is authorized to diWe think the above is the sound rule on rect a verdict for defendant; and, unless the this question; and, while trial Judges have

conclusion follows, as matter of law, that no

recovery can be had upon any view that can be the undoubted right to interrogate witnesses,

properly taken of the facts which the evidence and in certain cases it is their duty so to do, tends to establish, the case should be left to yet care should be taken to frame the ques- the jury under proper instructions." tions in such a manner as not to intimate to And see Creek Bank & Trust Co. v. Johnthe jury that the judge has any opinion as son, 33 Okl. 696, 127 Pac. 480, and St. L. & S. to the facts of the case or the credibility of F. R. CO. V. Long, 41 Okl. 177, on page 212, the witness. While much of the evidence 137 Pac. 1156, Ann. Cas. 19150, 432. brought out by the court in its examination [3, 4] Applying the principle decided by was not pertinent to the issues in the case, these cases, it cannot be said that there was yet we cannot say, from an inspection of the no evidence to go to the jury in this case. record, and especially from the charge, that The plaintiffs' evidence tended to prove that it probably resulted in a miscarriage of jus- the platform was out of repair; that at the tice, or constituted a substantial violation place where plaintiff's intestate alighted from of a constitutional or statutory right. Rev. the train there were nails protruding above Laws 1910, $ 6005. Plaintiff in error relies the surface of the platform; that some of on the city of Newkirk v. Dimmers, 17 Okl. the

the boards had holes in them; some would 525, 87 Pac. 603, but that case is distinguish

spring when trodden upon, and some were able from the case at bar, as there the trial

rotten at the edge next to the track. In the judge clearly intimated that the testimony of

absence of direct evidence as to what caused the witness was false, and that she had been

the plaintiff's intestate to fall, it was within procured by the plaintiff in error to falsely

the province of the jury to consider this evitestify, but the record before us does not dis- .

dence, and the inference drawn by them that close matter to bring the case within the

it was these defects that caused the accident rule established by that decision.

is not an improbable one. The next assignment of error is that the

[6] The next assignment of error is to court erred in overruling the demurrer to the

the admission of certain testimony. Among evidence, and under this assignment we will

other things the plaintiff was allowed to also consider the refusal of the court to di

show that it was the habitual practice of rect a verdict.

brakemen to get on and off moving trains at [2] The question is not presented that the

stations, and this was admitted on the happening of an accident, in case of an em

ground that the practice was so open and ployé, raises a presumption of negligence, and consequently the case of Patton y. Texas &

notorious that the superior officers of the

corporation must have known of it. Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275,

This 45 L. Ed. 361, does not apply, for while there

evidence was competent, because it was in is no direct evidence showing what caused

evidence that it was not practicable to do the deceased to fall, there was evidence show

switching around stations, without the brakeing the condition of the platform, from which

man getting on and off moving trains, and the jury might draw the inference that it was

the rule of the plaintiff in error, introduced the condition of the platform that was the in evidence, only prohibits employés getting proximate cause of the death of the plain on and off trains or engines moving at a tiff's intestate. In Waters-Pierce Oil Co. v. high rate of speed. The evidence was clearDeselms, 18 Okl. 107, 89 Pac. 212, it is held: ly admissible. In U. P. Railway Co. v.

“Where an accident has occurred resulting in | Springstwen, 41 Kan. 724, 21 Pac. 774, it is

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