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was? A. No evidence to show that deceased thought it imprudent."

Upon the return of the special findings the railroad company requested the court to require the jury to give more definite and direct answers to special questions Nos. 74, 80, 81, and 95, but the request was overruled. The general verdict of the jury was in favor of the plaintiff, and her damages were as. sessed at $10,000. The railroad company excepted to the rulings and the judgment, and brings the case here for review. Affirmed.

A. A. Hurd and Robert Dunlap, for plaintiff in error. J. D. Houston and W. E. Brown, for defendant in error.

tling for the station at Peabody, stating fully? A. According to defendant's rule 128, deceased was attending to his duties as brakeman. (81) What duty, if any, required Rowan to leave the fifth car from the engine to go upon the top of the high furniture car at the time he did go, and met his death, stating fully? A. As to what duty, not disclosed in evidence outside defendant's rule No. 128. (82) What was Rowan earning at the time of his death? A. From fifty-five to seventy dollars per month. (83) What proportion of his earnings was he contributing to the support of his family? A. All except what was necessary individual expens

(84) About what were his personal expenses at such time? A. Don't know from evidence. (85) Is it not a fact that such bridge was located between Emporia and Newton? A. Yes. (86) Is it not a fact that, during the entire time Rowan ran over that portion of the line between Emporia and Newton, he knew where bridge 154 stood and was located ? A. Yes.” “(90) Is it not a fact that to any person of ordinary care and prudence, occupying the position of a brakeman, who had run over the road where this bridge was as long as Rowan had, and who had seen as many of the high furniture cars as Rowan had seen, it would have appeared dangerous to attempt to ride over that bridge on the top of one of these furni. ture cars, going at the rate of from twentyfive to twenty-seven miles an hour? A. Yes; if he had time to observe at the right time and moment. (91) Is it not a fact that, from all the evidence in this case, Rowan had apparently forgotten and did not remember the position and location of bridge 154 at the time he got up from where he was sitting, on the fifth car from the engine, and walked back to the point where he was killed? A. From the evidence, no. (92) As Rowan was walking back on the top of a palace stock car to the furniture car, did he know or realize that the train was approaching this bridge? A. No. (93) What duty did Rowan have to perform or attend to immediately prior to his death, which would, or in any way could, have distracted his attention from the fact that the train was approaching this bridge? A. Not shown from the evidence. (91) Is it not a fact that the palace stock car, which was the fifth car from the engine on the train on which Rowan was killed, was 12 feet high, from top of rail to top of running board ? A. Yes. (95) As a matter of fact, would it not have been a very imprudent act for any brakeman sitting down on the top of any of defendant's palace stock cars, as it was approaching bridge 154, at the rate of 27 miles an hour, to have gotten up as the train got within a quarter or a half a mile of the bridge, and then walk across the top of such car, with his back to the bridge, to a high furniture car, and step upon it, without looking to see where the bridge

JOHNSTON, J. (after stating the facts). William H. Rowan came to his death on August 24, 1889, while discharging his duties as a brakeman on a freight train of the railroad company.

It is conceded that he was knocked from the top of a freight car by the overhead timbers of a railroad bridge located near Peabody, and that his death resulted almost instantly from the collision. He entered the service of the company in October, 1887, and continued in that service as brakeman or extra conductor the greater part of the time until his death. For more than a year before he was killed, he made frequent trips between Emporia and Nickerson, and the low bridge with which he collided is between these points. The space between the top of the rail and the underside of the overhead timbers of the bridge was 18 feet and one-quarter of an inch, and was sufficient so that a man standing erect on top of the ordinary freight car in use could pass in safety. The standard box car owned and used by the company was 11 feet from the top of the rail to the top of the running board; and the palace stock cars, many of which were used, were 12 feet high; while the furniture cars, which had been recently introduced, and which were occasionally used, were 13 feet and 1114 inches high. Rowan, who was about 5 feet high, could stand erect upon the standard or stock cars, and pass through the low bridge with safety; but it was not of sufficient height to permit him to pass under it while standing on the top of a furniture car. A rule of the company provided that every brakeman must be on the top of his train in passing stations or railroad crossings, and, as the train was approaching the station at Peabody, Rowan was properly upon the top of the train when he was killed. A considerable number of the high furniture cars had been in use on the road of the company for more than a year before Rowan's death occurred, and in fact he had been a brakeman or conductor upon at least 60 freight trains in which there was one or more of these high furniture

During the time that he was employed by the company on the main line between Emporia and Nickerson, he had been over this bridge practically at all times of day and night, and between these points there were

es.

cars.

car's.

two other bridges of the same height. The morning of the casualty was bright and clear, and, as the train approached the station and the bridge, Rowan, the head brakeman, who was sitting on the top of a stock car, arose, and walked back over that car; and as he stepped upon the next, which was a furniture car, the back of his head came in contact with the top of the bridge, and he was knocked down, and killed.

It is contended: First, that the company was free from negligence in maintaining the low bridge and in using high ca rs wbich pass over it; and, second, that, under the facts of the case, Rowan had opportunity to observe the height of the bridge, and to know that it would be dangerous to pass under the same while standing upon a furniture car, and that he must be deemed to have had knowledge of the danger, and to have assumed the risk, and was therefore guilty of contributory negligence in not looking when approaching the bridge, and in placing himself in a position of manifest danger.

It was the duty of the railroad company to construct and maintain its road and the bridges thereon in such a manner and condition that its employés might perform all the labor and duties required of them with reasonable safety, and a person entering the service of the company has a right to assume that this obligation has been discharged. It must be regarded as the settled law of this state that the maintenance of a bridge such as the one in question, so low as to make it unsafe for the trainmen to perform the duties required of them, is prima facie negli. gence; and, where injury results to an employé from such cause, the company is held liable, unless the injured employé is chargeable with contributory negligence, or witb the assumption of the risks of such danger. Railroad Co. v. Irwin, 37 Kan. 701, 16 Pac. 146. Can it be said, as a matter of law, that the risk was assumed by Rowan, or that the injury was the result of his own contributory fault? It is true that he assumed the ordinary hazards that necessarily accompany his employment, and of any unusual risks of which he had been warned or bad knowledge. It is contended that, as Rowan bad frequently passed under this bridge and two others of the same height, he knew, or should have known, that the bridge was too low to permit him to stand upon the top of furniture cars while passing through or under the bridge.

It is insisted that but one inference can reasonably be drawn from the testimony, and, therefore, that the court should declare, as a matter of law, that no recovery can be had in the case. We are of opinion that the testimony was sufficient to send the case to the jury, and that it cannot be said that the findings of fact do not justify a recovery. When the injury and the fault of the company had been proved, the burden of showing that Rowan had knowledge of the risk, or that he failed to exercise ordinary care in the matter,

rested upon the company. In the absence of evidence to the contrary, it will be presumed that Rowan was free from contributory negli. gence, as it is held "that a jury may infer ordinary care and diligence on the part of an injured person from the love of life, or the instinct of self-preservation, and the known disposition of men to avoid injury." Dewald V. Railroad Co., 44 Kan. 591, 24 Pac. 1101. As we have seen, the cars were of unequal height. Those longest in use were the lowest, and Rowan could safely pass through the low bridge while standing on top of such

The high cars have recently been brought into use, and it is not shown by any direct testimony that the attention of Rowan was ever called to the danger of riding througb the low bridge on top of these. No telltales or cautionary signals were placed near to nor on the bridge in either daytime or pighttime, to warn trainmen of their approach to the bridge and to danger. It does not appear that there was any change of the rules regulating the conduct of the men when the high cars were introduced, nor that notice of any kind was given to Rowan that the space between the top of these high cars and the overhead timbers of the low bridge was insufficient to permit him to pass over the top of the cars in the discharge of his duties as he had theretofore done. There is nothing to show that Rowan had ever been upon the top of the high cars in any position while passing under the low bridges, and nothing to indic cate that his attention was drawn to the proximity of the high cars to the bridge with which he collided. It is true that where dangers are obvious, and can be readily observed by any one by the exercise of ordinary care and prudence in the use of his senses, a specific notice is not in all cases essential to defeat a recovery; but the testimony in this case does not convince us that we should say, as a matter of law, that Rowan was chargeable with a knowledge of the peril, and that his failure to take the necessary steps to avoid the injury is a bar to any recovery.

It does not appear that the danger was actually known to him, and the testimony given shows that it is not easy to determine from the top of a more ing train the space between the train and the top of a bridge, In Railroad Co. v. Irwin, 37 Kan. 701, 16 Pac. 146, it was said that “men of experience say that it is a very difficult matter to tell exactly how high an object is above a moving train. The smoke of the engine and the swaying motion of the cars render it hard to see and comprehend the proximity of the overhead timbers of a bridge, and this is very well shown in the widely. differing statements of the witnesses respect. ing the height of the bridge in question." The brakeman who accompanied Rowan, and who was the principal witness in the case, testified that he had been over that run for more than a year, and yet he was unable to state the distance between the ordinary freight car and the top of the bridge, or

whether he could ride on top of the train Kan. 621, 21 Pac. 582; Dewald v. Railroad without coming in contact with the timbers Co., 44 Kan. 586, 24 Pac. 1101; Darling v. of the bridge. In response to another ques- Railroad Co. (R. I.) 24 Atl. 462; Stirk v. Railtion, he did state that from his observation road Co., 79 Ga. 495, 5 S. E. 105; Beach, it would be hazardous to undertake to ride on Contrib. Neg. $8 448-451; 16 Am. & Eng. Enc. the top of a furniture car; but that he had Law, 465. ridden with the deceased over the line so Complaint is also made of the refusal of frequently without carefully observing the in- certain instructions requested by the railtervening space only tends to show that Row- road company, but an examination of the recan may never have observed the proximity of ord satisfies us that those which were pertithe top of the bridge, or appreciated the peril nent and important were embraced in the there was in riding upon the top of the furni- general instructions of the court, and that ture car.

the case was fairly presented to the jury by If any notice or warning had been given the charge that was given. that there was danger in riding on the top It is also claimed that the court committed of furniture cars, or if all the cars had been error in failing to require the jury to give a of the same height, so that Rowan must have more specific and definite answer to the nine known that he could not stand erect while ty-sixth question that was submitted to the passing under the bridge, there would be jury. As will be seen, the question is very ground for the contention of the company general and complex in its character, and for that the risk of the danger from the low that reason it might have been refused in bridge had been assumed, and the negligence the first instance. Another objection to the of the company in that respect had been question is that it omits the element of any waived. It appears, however, that there knowledge of the risk by the employé. were four grades of cars used, of different Aside from that, a large number of questions heights, and it can be readily seen that the were submitted to and answered by the jury, difference in height of the several cars would and these covered the facts of the case so easily deceive a trainman, whose only infor- fully that there is little cause for complaint mation was derived by observation from the in that regard. top of a swiftly-moving train. As Rowan The misconduct of the attorney for plainwas killed instantly, no direct testimony as tiff below in the argument of the case is asto his knowledge can be obtained, and infor- signed for error. The language used by him mation on that point must be looked for else- was certainly intemperate and improper. where. While he had ridden over this sec- Nothing can be said in justification of such tion of the road for a year or more, no one practice, and, under some circumstances, the has been produced to show that he had ever misconduct would be deemed sufficient to ridden upon one of the high cars, or that compel a reversal of the judgment. As counhis attention was ever called by any one to sel was proceeding with the statements to the risk of so doing. The jury found that he which exceptions have been taken, an objecwas not familiar with the furniture cars; tion was made by the railroad company, also, that he was proceeding in the discharge when counsel for plaintiff below remarked: of his duties when he was killed; and there "I withdraw that statement, and ask the are also findings which tend to show that court to instruct the jury to disregard it." he did not realize that he was approaching And thereupon the court stated: “Yes; that the bridge in question when he was killed, will be done." While the remark of the or comprehend the danger from riding on court was made in the presence and heartop of the furniture car. So far as the testi- ing of the jury, no specific withdrawal was mony goes, he was not informed of the dan- made, nor was any further notice taken ger when the high cars were introduced, no of the misconduct. It was the duty of the change of rules relating thereto was promul- trial court to keep counsel within the bounds gated by the company, no warnings were of proper argument, and to promptly rebuke given or signals placed on or near the bridge, any attempt to bring in extraneous matters he had no actual knowledge of the risk, and, with a view of influencing or prejudicing the as it is one which is not easily observed from jury. It is generally held to be sufficient, the top of a moving train, the question of where improper remarks are made in arguwhether he was guilty of contributory neg. ment, that an objection is sustained by the ligence in not ascertaining, by measurement court, and the jury are advised to disregard or accurate observation, whether he could the objectionable remarks in their considerapass safely under the overhead timbers of tion of the case. Whether the action taken the bridge while standing erect on the fur- by the court in this instance was sufficient niture car, is a question of fact, rather than to cure the error may be a matter of some of law, the determination of which is neces- doubt. Assuming, however, that there was sarily for the jury. Railroad Co. v. Irwin, prejudice, the misconduct cannot, as the rec37 Kan. 701, 16 Pac. 146; Railroad Co. v. ord stands, be made a ground of reversal. Mortenson, 11 C. C. A. 335, 63 Fed. 530. See, While one of the grounds alleged in the moalso, City of Osage v. Brown, 27 Kan. 74; tion for a new trial was the misconduct of Railroad Co. v. McCandliss, 33 Kan. 366, 6 the plaintiff, it was not supported by affidaPac. 587; Railway Co. v. Neiswanger, 41 vit. The statute specifically prescribes that to obtain a new trial for misconduct of the worth of goods, but made no payment to prevailing party, the motion must be sustain- Beck, made no account to him, and was not ed by affidavits showing the alleged charge requested to do so, and there was no agreeto be true. Civ. Code, $$ 306, 309. The im- ment between the parties that he sbould do proper remarks of counsel in argument bave SO. The mortgage of the 4th of March, 1889, always been treated as misconduct, and, as from Epley & Shaw to Beck, contained the such, it is imputable to the party for whom following provisions: “The property sold is he appears; but, as the defendant below fail- to remain in possession of said parties of the ed to sustain the charge of misconduct in the first part until default be made in the paymanner prescribed by statute, the objection ment of the debt and interest aforesaid; or has not been properly saved, and is therefore some part thereof; but in case of a sale or not available as a ground of reversal.

disposal or attempt to sell or dispose of the The judgment of the district court will be same, or a removal of or attempt to remove affirmed. All the justices concurring.

the same from Beck's store, where it now is, or an unreasonable depreciation in the

value, or if, from any cause, the security shall (55 Kan. 71)

become inadequate, the said party of the secSMITH et al. v. EPLEY et al.

ond part may take such property into his (Supreme Court of Kansas. April 6, 1895.)

own possession; and upon taking said propFRAUDULENT CONVEYANCES-MORTGAGE ON STOCK

erty into his possession, either in case of deIN TRADE,

fault or as above provided, said party of the Where a merchant who has given a chat- second part shall sell the same at public auc. tel mortgage for $1,520 upon a small stock of

tion or private sale; and after satisfying the goods, valued at about $3,000, and is permitted

aforesaid debt and interest thereon and all by the mortgagee to remain in possession of the stock as the owner, and there is no provision in necessary costs, charges, and expenses inthe mortgage as to what the mortgagor shall curred, out of the proceeds of the sale, he shall do with the proceeds of the sales thereof, and

return the surplus to said parties of the first the mortgagor, with the permission of the mortgegee, continues for many months to sell the part, or their legal representatives; and if, stock of goods at retail in the usual course of from any cause, said property shall fail to business, is permitted to use the proceeds of the

satisfy said debt and interest aforesaid, said sales in any manner he pleases, without regard

parties of the first part hereby agree to pay to the mortgage debt, and does not apply any part of the proceeds to pay the debt secured the deficiency." This mortgage was filed for by the mortgage, the mortgage is void as to the record on March 28, 1889. On November 20, creditors of the mortgagor, and also void as to

1889, Epley executed to Smith, Heddens & Co. a creditor who obtains a lien thereon by a subsequent chattel mortgage .to secure his claim,

& chattel mortgage on the stock of mercbanalthough he has notice at the time of accepting dise he then had, to secure them the pay. his mortgage of the existence of the prior void

ment of $600, being a balance due them for mortgage.

goods sold to him by them at various times (Syllabus by the Court.)

prior thereto, and by him placed in the store. Error from district court, Greenwood coun- This mortgage was filed for record November ty; C. A. Leland, Judge.

21, 1889. Before the mortgage was executed, Action in replevin by Smith, Heddens & Co. Smith, Heddens & Co.'s agent, having charge against J. W. Epley, defendant, and Henry of the collecting of their account, was inBeck, intervener. From the judgment ren- formed by Epley of Beck's mortgage On dered, plaintiffs bring error. Reversed.

the 23d day of November, 1889, Smith, HedOn the 8th of January, 1889, Henry Beck dens & Co. commenced their action of resold a general stock of merchandise, worth plevin against J. W. Epley, to recover posabout $3,000, located in the Beck building, in session of the mortgaged property from Quincy, Greenwood county, to J. W. Epley | him; and on the same day the sheriff took and C. M. Shaw, partners as Epley & Shaw. the property from Epley, and on the 25th On the 4th of March, 1889, Epley Sbaw delivered the same to plaintiff, under the made a chattel mortgage on this merchandise writ in that action. On December 14, 1889, to Henry Beck, to secure a note for $1,520, a Epley filed his answer to the action; and part of the purchase money remaining unpaid. on the 14th day of January, following, HenBeck's note was not due until January 8, 1890. ry Beck filed an answer or interplea, in In March, 1889, Epley bought out the interest which he claimed "one-half of entire portion" of his partner, Shaw, and paid him $300 for of the goods mortgaged to hiin, and taken in the same, from the proceeds of the sale of the replevin against Epley. To this answer was goods. After Epley purchased the interest of attached a copy of the mortgage of Shaw his partner, Shaw, he continued in posses- & Beck. On the 230 day of January, 1890, sion and conducted the business until No- the case was called for trial in the district vember 25, 1889, running the business as court of Greenwood county, and Epley with. A retail store. He purchased new goods in drew his defense. The plaintiffs demanded large amounts during that time, mingling the judgment on the pleadings. The court de same with the goods of like kind mortgaged nied this, and allowed Beck to amend his an. to Beck, with the knowledge of Beck, and swer. The court allowed, subsequently, furwithout objection from him. During this ther amendments, by interlineations. Plaintime, Epley sold out of the store over $3,000 tiffs renewed their demand for judgmert on the pleadings, which was refused, and plain- Ans. He paid in $300; and drew out $300. tiffs then filed a reply to the amended answer (20) Is it not a fact that he paid Shaw for of Beck, being a general denial, and specially said interest from the sales of goods sold in denying that Beck had any right to the prop- the usual course of trade? Ans. Yes." "(22) erty, or that his mortgage had ever been filed Is it not a fact that all cash received for the for record, or that the property taken in re- sales of goods was indiscriminately placed in plevin, or any part thereof, was the same as the cash drawer, regardless of what goods that described in Beck's alleged mortgage, produced said cash? Ans. Yes.” “(24) Was and setting up that Beck's mortgage was J. W. Epley in possession of and selling said fraudulent and void. A trial was had to a goods mortgaged to Henry Beck as the owner jury, and the jury made special findings of thereof? If not, state in what capacity he fact, which they returned with their verdict. was so acting. Ans. Yes. (25) Was J. W. The verdict was to the effect that Beck was Epley in possession of and selling said goods entitled to a certain portion of the property, mortgaged to Henry Beck as the agent of and that plaintiffs were entitled to the resi- Beck? Ans. No.” The plaintiffs bring the due. Plaintiffs asked the court to render case here. judgment for them against Beck and Epley,

Rossington, Smith & Dallas, Geo. O. Blake, notwithstanding the verdict, which motion

and Kelley & Lamb, for plaintiffs in error. was taken under advisement by the court till

W. R. Biddle, for defendants in error. May 7, 1890, at which time the motion was overruled. Plaintiffs then presented their mo- HORTON, C. J. (after stating the facts), tion for a new trial, which was overruled. The principal question presented in this case Thereupon the court rendered judgment in is whether the chattel mortgage executed by favor of Beck for the possession of the por- Epley & Shaw to Henry Beck is void as tion of the property mentioned in the verdict, against the creditors of J. W. Epley. A few or for its value if a return could not be had, days after the execution of the mortgage, and for costs.

Epley purchased the interest of his partner, The jury made the following among other C. M. Shaw, in the mercantile business in special findings of fact: “(6) Did J. W. Epley, which they were engaged. From that time after he became the sole proprietor, continue to the 23d of November, 1889, when the goods to sell said stock of goods in the usual were seized under the mortgage to plaintiffs, course of trade? Ans. Yes." “(9) Is it not Epley was in the possession thereof, as the a fact that said Henry Beck had knowledge owner, and sold the same at retail, in the of the selling of said goods, and neither made usual course of business. With the knowlobjection nor demanded or asked for any of edge of Beck, and without any objection the said proceeds? Ans. Yes. (10) Is it not from him, Epley had the power to use the a fact that all the proceeds of the sales of proceeds of the sales of the mortgaged propsaid goods were used by said J. W. Epley or erty in any manner he pleased, even for the his partner, while he had one, in carrying payment of his private expenses. There was on their business generally, to bear their per- no agreement between Epley and Beck that sonal and business expenses? Ans. Yes. (11) any of the proceeds should be paid to the Is it not a fact that a part of the said pro- latter. No part of the sales were applied to ceeds were used by J. W. Epley in the pur- pay the indebtedness secured by the chattel chase of other goods to be placed in said mortgage or for the benefit of the mortgagee. store? Ans. Yes." "(13) Did Mr. Beck know In fact, all sales were made by Epley in his of these purchases of new goods? Ans. Yes. own behalf and at his own discretion, and (14) Did he object to the same? Ans. No. with control of the proceeds reserved to him(15) Did Mr. Beck trade with Mr. Epley? If self. We have ruled that “a power given to so, did he pay cash, or have it credited on the mortgagor to sell the whole of the morthis indebtedness? Ans. Yes; he paid cash. gaged property would really render the mort(16) Is it not a fact that Mr. Beck never ob- gage nugatory, and the mortgagor would still jected to the manner of doing business by J. remain substantially the owner of the propW. Epley, and the manner of using the pro- erty. Such a power in any mortgage would ceeds of the sales made by him? Ans. Yes. be inconsistent with any supposed incum(16a) Is it not a fact that J. W. Epley had brance granted by the mortgage." Rathbun full possession and control of the proceeds v. Berry, 49 Kan. 735, 31 Pac. 679; Leser v. of all sales made of goods, with power to use Glaser, 32 Kan. 546, 4 Pac. 1026; Implement the same in any manner he pleased? Ans. Co. v. Schultz, 45 Kan. 52, 25 Pac. 625. As Yes. (17) Was there any agreement between the business of J. W. Epley, after the giving Mr. Beck and Epley that the proceeds of the of the mortgage to Beck, was carried on for sales of said goods should be paid to Mr. about eight months the same as before, as Beck? Ans. No. (18) Is it not a fact that the proceeds of the sales were used by Epley Mr. Epley used the same just as he pleased, as he saw fit for the purchase of new goods, and in any manner his wishes might dictate, and for his personal expenses, without any and at times for the payment of his private regard to the mortgage debt, with full knowlexpenses? Ans. Yes. (19) Is it not a fact edge and consent of Beck, the mortgage is that J. W. Epley purchased the interest of void as to the plaintiffs and other creditors. his partner, C. M. Shaw, for about $300? The reasons for the invalidity of the Beck

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