State, Braswell v. (Okl. Cr. App.). ..... .1130 .1130 State, Walker v. (Okl. Cr. App.). 78 State v. Ward (Wash.). .1130 State, Watson v. (Okl. Cr. App.). .1131 State, Watson v. (Okl. Cr. App.). 903 State, Williams v. (Okl. Cr. App.). 910 State v. Wilson (Wash.)... .1131 State, Wines v. (Okl. Cr. App.). .1131 State, Wood v. (Okl. Cr. App.). 632 State v. Zerbe (Kan.). 631 State v. Superior Court, Thurston County (Wash.). .1127 626 State, Taggart v. (Okl. Cr. App.). ..1134 State, Tucker v. (Okl. Čr. App.) 1130 State v. Turner (Kan.). ..1134 424 87 913 329 .1101 330 .1125 466 ..1134 160 State, Milton v. (Okl. Cr. App.). State, Putman v. (Okl. Cr. App.). State, Ratliff v. (Okl. Cr. App.). State, Rhoads v. (Okl. Cr. App.). State v. Robinson (Wash.).. Superior Court, Thurston County, State v. (Wash.) .1127 (Wash.) .1112 Superior Portland Cement Co., Johnston v. .1132 .1119 .1133 Swan v. Walden (Cal. App.). .... 857 Vaughn, Hoteyabi v. (Okl.). Vaulto, Chicago, R. I. & P. R. Co. v. (Okl.) 989 Winstanley, Foster v. (Mont.). Veness Lumber Co., Harkins v. (Wash.).. 63 Wines v. State (Okl. Cr. App). 466 .1129 492 Wolcott v. Smith (Okl.).. 970 Verde, Baumle v. (Okl.). .1083 Victor Inv. Co. v. Roerig (Colo. App.). 349 Woman's Club of Kern, Upton v. (Cal. 858 V. Grunewald Wood v. Independent School Dist. No. 2 (Idaho) 780 Wood v. State (Okl. Cr. App.). .1134 Woodard v. Strosnider (Okl.). 967 Wadleigh v. Parker (Okl.).... 957 Woodill Auto Co., Haynes Automobile Co. Wadlington, Hine v. (Okl.). 299 v. (Cal.). 717 Walden, Swan v. (Cal. App.). 857 Woods, Smith v. (Okl.). .1088 Walker v. State (Okl. Cr. App.). 87 Woodward v. Lutsch (Wash.). 393 Walker Bond & Co. v. Purifier (Okl.). 322 Wooster, Donohoe v. (Cal.). 730 Wallace, Gay v. (Okl.). .1082 Worley v. Spreckels Bros. Commercial Co. Walter G. Reese Co. v. House (Cal.). 442 Walters, Gibson v. (Kan.). 168 Ward, State v. (Wash.). Warden, Boyd v. (Cal.). Warden, Leahy v. (Cal.). 825 Youngberg, People v. (Colo.) 745 Warr, Burgess v. (Colo.). 344 REHEARINGS DENIED [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] MONTANA Chestnut v. Sales, 121 Pac. 481. Cohen v. Clark, 119 Pac. 775. Murphy v. Stone & Webster Engineering Corporation, 119 Pac. 717. THE PACIFIC REPORTER VOLUME 124 (31 Okl. 818) BULLEN v. HUDSON et al. (Supreme Court of Oklahoma. March 12, 1912. Rehearing Denied June 6, 1912.) (Syllabus by the Court.) APPEAL AND Error (§ 336*)—DISMISSAL-DEFECTIVE PARTIES. A petition in error by one of several defendants against whom judgment was entered jointly for the recovery of a specified sum to which the other defendants are neither made parties plaintiff nor defendant in error must be dismissed for want of necessary parties. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1868-1876; Dec. Dig. 8 336.*] Error from Pawnee County Court; N. E. McNeil, Judge. Action by Frank Hudson and others against H. B. Bullen and others. Judgment for plaintiffs, and Bullen alone brings erDismissed. ror. P. W. Cress, of Perry, for plaintiff in error. W. L. Eagleton, of Norman, for defendants in error. KANE, J. This was an action commenced by the defendants in error, plaintiffs below, against the plaintiff in error and the Arkansas Valley Townsite Company and H. C. Hanna, defendants below, on a nonnegotiable promissory note. Upon the trial there was judgment in favor of the plaintiff against all of the defendants jointly, from which judgment the plaintiff in error alone appealed without making his codefendants either plaintiffs in error or defendants in error. The defendants in error now move to dismiss the cause upon the ground of nonjoinder of proper parties. The motion to dismiss must be sustained. The record shows that the motion for a new trial was filed on behalf❘ of the plaintiff in error alone, and time to make and serve a case-made was granted to him, but the case-made was served only on the defendant in error Frank Hudson, and that the time and place of settling the casemade was not served upon any one except defendant in error Hudson. No proposition is better settled by this court than that a petition in error by one of several defendants against whom judgment was entered jointly for the recovery of a specified sum to which the other defendants are neither made parties plaintiff nor defendant in error must be dismissed for want of necessary parties. The appeal is dismissed. All the Justices concur, except WILLIAMS, J., absent, and not participating. (31 Okl. 820) SETON v. HUDSON. (Supreme Court of Oklahoma. May 14, 1912.) (Syllabus by the Court.) APPEAL AND ERROR (§ 336*)—PARTIES-DIS MISSAL. A petition in error by one of several defendants against whom judgment was entered which the other defendants are neither made jointly for the recovery of a specified sum to parties plaintiff nor defendant in error must be dismissed for want of necessary parties. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1868-1876; Dec. Dig. § 336.*] Error from Pawnee County Court; N. E. McNeeil, Judge. Seton and others. From an order denying a Action by Frank Hudson against Clark motion by defendant Clark Seton to set aside a judgment against defendants, he brings error. Dismissed. P. W. Cress, of Perry, for plaintiff in error. W. L. Eagleton, of Norman, for defendant in error. DUNN, J. This case presents error from the county court of Pawnee county. October 8, 1909, the said court rendered a joint judgment against the Arkansas Valley & Western Railway Company, the Arkansas Valley Townsite Company, H. C. Hanna, and Clark Seton, who were held liable upon a nonnegotiable promissory note. From an order of the court denying a motion of Clark Seton, one of the joint judgment debtors, to set aside the judgment entered, appeal has been lodged in this court. The defendant in error now moves to dismiss the cause upon the ground of nonjoinder of proper parties. The record shows that the motion which was denied was filed on behalf of defendant, Clark Seton, and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes time to make and serve case was granted to him alone, and the case-made was served upon the defendant in error, Frank Hudson, only, and that the time and place of settling and signing the case-made was not served upon nor waived by any of the other defendants. Hence it follows from the uniform holding of this court in a large number of cases that the motion to dismiss must be sustained. See Bullen v. Hudson et al., 124 Pac. 1, an opinion of this court filed March 12, 1912; Saunders et al. v. Mullen et al., 119 Pac. 963, and cases therein cited. Error from District Court, Creek County; W. L. Barnum, Judge. Action by Anna Posten against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and J. H. Grant, both of Oklahoma City, for plaintiff in error. E. C. Warfel, of Topeka, Kan., and Tibbetts & Green, of Guthrie, for defendant in error. DUNN, J. This case presents error from the district court of Creek county. Under TURNER, C. J., and WILLIAMS, KANE, the pleadings and the evidence, it is made and HAYES, JJ., concur. (31 Okl. 821) to appear that the defendant, on March 14, 1908, owned and operated a line of railway between Oklahoma City and Sapulpa, Okl.; that W. H. Posten, who was the husband of plaintiff, was a United States mail clerk, and, as such, was engaged in the performance of his duties on one of defendant's passenger trains. The train on which he was riding was derailed about 210 feet west of a place where the track runs over a wooden trestle spanning a gorge or a creek. The engine ran onto the bridge and overturned, and as it plunged into the creek the combination mail and baggage car, and a part of the combination negro coach and smoker, followed it. Part of the bridge was torn down and demolished. The chair car and Pullman were left upon the right of way. Plaintiff's husband and the fireman of the train were killed and the engineer seriously injured. The negligence charged by plaintiff, and to which her evidence was largely directed, was as follows: "And plaintiff particularly alleges that said wreck was caused by the neg ligence of said defendant and its servants in failing to keep and maintain the roadbed on its said line of railroad in proper repair, in using light and insufficient ties in the construction of said railroad, and in failing to remove old and rotten ties, and replace them with new ones; in failing to keep the joints at the ends of said railroad irons or rails in proper condition, and in failing to equip its train with proper air brakes, and in failing to apply its brakes immediately upon the derailment of the train, and in failing to construct its said bridge of proper and durable material in a proper and safe manner." The answer of defendant was a general denial. On the issues thus made, the cause was preINJURIES TO PASSEN-sented to a jury, which returned a verdict in GERS-DEGREE OF CARE REQUIRED. plaintiff's favor in the sum of $5,000. To reverse the judgment rendered thereon, after denial of a motion for new trial, the cause has been by defendant lodged in this court. ST. LOUIS & S. F. R. CO. v. POSTEN. (Supreme Court of Oklahoma. May 14, 1912.) (Syllabus by the Court.) 1. TRIAL (§ 178*)-DIRECTING VERDICT. withdraw a question of fact from the jury. Where the derailment of a train is averred to be due to the negligence of the railway company in certain specified particulars, and evidence thereof is introduced sufficient to support a verdict, and the railway company offers evidence of an independent fact which, it claims, caused the accident, and which, if true, would relieve it of responsibility, it is the duty of a trial court to present both theories to the jury, unless the latter is established so effectively that all unprejudiced, reasonable men would agree thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 477-479; Dec. Dig. § 203.*] 3. CARRIERS (§ 316*) Where a prima facie case is made out to recover damages for injuries sustained through the derailment of a train upon which a passenger was riding. it devolves upon the railroad company, in order to be relieved of liability, to show that the accident could not have been avoided by the exercise of the utmost human prudence and foresight; and instructions placing upon it this burden are without error. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1261, 1262, 1283-1294; Dec. Dig. § 316.*] The theory upon which the cause was tried by plaintiff, and upon which it was probably decided by the jury, is that for some cause, probably the spreading of the rails, or because of a low joint, or, perhaps, because of the falling of a nut on the rail from some |