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 Holt by means whereof he obtained the money and invested it in the automobile, all of which, it is alleged, was known to Linney.

The

said assignment, paid the arrearage. finding is sufficient to negative the allegation made in the answer.

[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 Studebaker Company, the seller of the car, where the assignment of the contract was made, Linney stating that he desired to get the car the possession of which it appears Holt had theretofore delivered to the company. Upon the making of the assignment and Linney paying the installments then due and unpaid, the company indorsed thereon,

[4, 5] Defendant Linney appeared in court by an attorney of record, who conducted his case to a point in the proceedings where defendant Linney proposed to cross-examine one of plaintiff's witnesses; whereupon, it appearing that he would be a witness in his own behalf, the court denied him the right to cross-examine the witness. Thereupon his 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 attorney of record, the court may insist that such attorney and not his client, appearing as a party litigant only, conduct the trial. Boca, etc., R. R. Co. v. Superior Court, 150 Cal. 153, 88 Pac. 718. Indeed, courts have not infrequently insisted that where more than one attorney appears, one only shall conduct the examination of witnesses. But, however this may be, and conceding the ruling was error, it is impossible to perceive how defendant was prejudiced thereby, and hence it may be disposed of by applying thereto the provisions of section 42, article 6 of the Constitution.

the company had delivered the car to Linney, and a new contract was made direct with Linney which, so far as it concerned the amount, terms, and conditions, was identical with the terms and conditions contained in the contract made with Holt and by him assigned to Linney. The company recognized the existence of its contract with Holt and his right to assign the contract, pursuant to which it delivered the car to Linney and released Holt from further liability thereon. The court was justified, under all the circumstances, in its conclusion that this was a mere subterfuge.

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

6. MASTER AND SERVANT 270-INJURY TO eral denial, and alleges contributory negliBRAKEMAN EVIDENCE SUBSEQUENT CON-gence, assumption of risk, and also pleads cer

Evidence of the condition of a platform tain rules of the plaintiff in error, regulating three weeks after the accident is admissible the conduct of its employés. when it is shown that no change has been made The evidence on the part of the plaintiff For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Second petition for rehearing denied February 29, 1916.

"To enter or remain in the service is an as- platform of defendant's as charged, while assistsurance of willingness to obey the rules. "Obedience to the rules is essential to the safety of passengers and employés, and to the protection of property.

154 PACIFIC REPORTER

the Senate and House of Representatives of the United States of America, it is provided that every common carrier by railroad, while engaged in commerce between any of the several states of the Union, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, or other equipment; and it is further enacted that the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages (in case of plaintiff's recovery) shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. Now, so far as the foregoing law applies to the rights of plaintiff to recover herein, you are instructed that the railway company was required to use ordinary care to furnish its employés a reasonably safe place in which to perform their work; and, in this connection, you are instructed that, if you find from a preponderance of the evidence that at the time and place of the alleged injury to and death of the said B. F. Clampitt, the defendant's said depot platform at Thomas, Okl., was, and for some weeks prior thereto had been, to the knowledge of the defendant, defective and ursafe for ordinary use by defendant's brakeman and employés while rightfully engaged in the performance of their duties, because of loose boards therein, containing rotten places and protruding nails at the particular places in question, as charged, and that the defendant was negligent, as charged, in so maintaining said platform in said condition, and that such negligence directly, proximately, and materially contributed to the death of said Clampitt, as charged, then you may find for the plaintiff and against the defendant, subject, however, to all of the other instructions herein given you."

The plaintiff in error also requested the following instructions, which were refused, and their refusal is assigned as error:

"One who voluntarily enters the employ of another assumes all of the ordinary risks incident to such employment and if injured while so employed by reason of a risk assumed, he cannot recover; neither can his personal representative recover in the event of his death."

"In entering the employ of the defendant, the deceased impliedly agreed, aside from his written agreement, to assume all of the risks incident to his employment as a brakeman. station platform at Thomas was in a defective If the condition at the time the deceased was injured and he knew of its being in such condition, or by the exercise of ordinary care he should have known of such condition, and he voluntarily remained in the service of defendant, then he assumed the risk of being injured therefrom and, if injured while so employed, the plaintiff here in cannot recover."

"In this connection, gentlemen of the jury, you are further instructed that, even though you believe that the station platform at Thomas was defective, and believe that the defendant was negligent in the maintenance of same, still your verdict should be for the defendant unless you find, by a fair preponderance of the evidence, that the negligence of the defendant, with respect thereto, was the direct and proximate cause of the death of deceased. You cannot return a verdict against the defendant upon mere speculation or conjecture your verdict must be based upon the facts disclosed by the evidence." "You are further instructed that if a servant has two ways of performing his work, one a comparatively safe way, and the other danger

(Okl.

ous, and he adopts the dangerous way and is injured, he is held to have assumed the risk of being injured thereby, and cannot recover. If you believe from the evidence in this case, therefore, that the deceased had two ways of performing his work at the station of Thomas on the day he was injured, one of them comparatively safe and the other dangerous, and that he adopted the dangerous way and was thereby injured, then the plaintiff is not entitled to recover herein and your verdict must be for the defendant."

quested certain special interrogatories to be At the close of the evidence the plaintiff resubmitted to the jury in addition to their general verdict, which was refused and exceptions saved.

Klienschmidt and J. H. Grant, both of OklaW. F. Evans, of St. Louis, Mo., and R. A. homa City, for plaintiff in error. J. D. Houston and C. H. Brooks, both of Wichita, Kan., and C. H. Parker and P. C. Simons, both of Enid, for defendant in error.

above). [1] The first assignment of error is
DEVEREUX, C. (after stating the facts as
that, owing to irregularity in the proceedings
and conduct of the court, the defendant was
prevented from having a fair trial. This as-
signment of error is based on the cross-exam-
ination of several of the defendant's witness-
es by the court, but it is not necessary to set
the cross-examination out at large. But we
are not prepared to say that it constitutes re-
versible error.
court taking charge of a witness and indulg-
ing in a long cross-examination is not to be
The practice of the trial
commended. In N. Y. Transportation Co.

held:
v. Garside, 157 Fed. 521, 85 C. C. A. 285, it is

"It must be admitted that a continual interwitnesses may prejudice the jury to the extent position by the trial judge in the examination of indeed, it is his duty, to see that the facts of the case are brought intelligibly to the attenclaimed. Still the trial judge has a right, and, tion of the jury, and to what extent he will interfere, for this end is a matter of discretion."

White Coal Mining Co. v. Firment, 170 Fed. In commenting on this case in Berwind151, 95 C. C. A. 1, the Circuit Court of Appeals for the Second Circuit, says:

In the case at bar the cross-examination by the "We found no abuse of discretion in that case. court was much more extended, and, presumably through some errors either in the stenographic report or in its transcription into the case on appeal, there are passages where it is difficult to tell whether a particular statement is made or is a summary by the court of what he underby a witness in response to the court's questions, stood the witness to have already testified to. Nevertheless, on a careful study of the record, we do not feel warranted in reversing on this exception. pand somewhat the statement made in the GarIt may be proper, however, to exside Case. selves where a plaintiff or defendant is repreCases occasionally present themsented by incompetent counsel, and where the ends of justice require the trial judge to secure, so far as he can, a fair and full presentation of the case, so that the party who came into the amination of the facts in controversy, will find court, expecting to have a full, fair, and just exhis expectation realized. But where a party is represented by competent counsel-as the brief

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 dethe judge can, and indeed ought to, in-termined from the minor associated facts and tervene so that the ends of justice may be subcircumstances. 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 for plaintiff that the court is authorized to direct a verdict for defendant; and, unless the conclusion follows, as matter of law, that no recovery can be had upon any view that can be properly taken of the facts which the evidence tends to establish, the case should be left to the jury under proper instructions."

witness is called."

We think the above is the sound rule on this question; and, while trial judges have the undoubted right to interrogate witnesses, and in certain cases it is their duty so to do, yet care should be taken to frame the questions in such a manner as not to intimate to the jury that the judge has any opinion as to the facts of the case or the credibility of the witness. While much of the evidence brought out by the court in its examination was not pertinent to the issues in the case, yet we cannot say, from an inspection of the record, and especially from the charge, that it probably resulted in a miscarriage of justice, or constituted a substantial violation of a constitutional or statutory right. Rev. Laws 1910, § 6005. Plaintiff in error relies on the city of Newkirk v. Dimmers, 17 Okl. 525, 87 Pac. 603, but that case is distinguishable from the case at bar, as there the trial judge clearly intimated that the testimony of the witness was false, and that she had been procured by the plaintiff in error to falsely testify, but the record before us does not disclose matter to bring the case within the rule established by that decision.

The next assignment of error is that the court erred in overruling the demurrer to the evidence, and under this assignment we will also consider the refusal of the court to di

rect a verdict.

And see Creek Bank & Trust Co. v. Johnson, 33 Okl. 696, 127 Pac. 480, and St. L. & S. F. R. Co. v. Long, 41 Okl. 177, on page 212, 137 Pac. 1156, Ann. Cas. 1915C, 432.

[3, 4] Applying the principle decided by these cases, it cannot be said that there was no evidence to go to the jury in this case. The plaintiffs' evidence tended to prove that the platform was out of repair; that at the place where plaintiff's intestate alighted from the train there were nails protruding above the surface of the platform; that some of the boards had holes in them; some would spring when trodden upon, and some were rotten at the edge next to the track. In the absence of direct evidence as to what caused the plaintiff's intestate to fall, it was within the province of the jury to consider this evidence, and the inference drawn by them that it was these defects that caused the accident is not an improbable one.

the admission of certain testimony. Among [5] The next assignment of error is to other things the plaintiff was allowed to show that it was the habitual practice of brakemen to get on and off moving trains at

stations, and this was admitted

on the

This

[2] The question is not presented that the happening of an accident, in case of an employé, raises a presumption of negligence, and ground that the practice was so open and consequently the case of Patton v. Texas & notorious that the superior officers of the Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, corporation must have known of it. 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 the jury might draw the inference that it was the condition of the platform that was the proximate cause of the death of the plaintiff's intestate. In Waters-Pierce Oil Co. v. Deselms, 18 Okl. 107, 89 Pac. 212, it is held: "Where an accident has occurred resulting in

man getting on and off moving trains, and the rule of the plaintiff in error, introduced in evidence, only prohibits employés getting on and off trains or engines moving at a high rate of speed. The evidence was clearly admissible. In U. P. Railway Co. v. Springstwen, 41 Kan. 724, 21 Pac. 774, it is