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 cars which 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 negligence; 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 with 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 had knowledge. It is contended that, as Rowan had 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 negligence, 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 cars. 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 through the low bridge on top of these. No telltales or cautionary signals were placed near to nor on the bridge in either daytime or nighttime, 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 be tween 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 indicate 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 moving 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 widelydiffering statements of the witnesses respecting 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 without coming in contact with the timbers of the bridge. In response to another question, he did state that from his observation it would be hazardous to undertake to ride on the top of a furniture car; but that he had ridden with the deceased over the line so frequently without carefully observing the intervening space only tends to show that Rowan may never have observed the proximity of the top of the bridge, or appreciated the peril there was in riding upon the top of the furniture car.

If any notice or warning had been given that there was danger in riding on the top of furniture cars, or if all the cars had been of the same height, so that Rowan must have known that he could not stand erect while passing under the bridge, there would be ground for the contention of the company that the risk of the danger from the low bridge had been assumed, and the negligence of the company in that respect had been waived. It appears, however, that there were four grades of cars used, of different heights, and it can be readily seen that the difference in height of the several cars would easily deceive a trainman, whose only information was derived by observation from the top of a swiftly-moving train. As Rowan was killed instantly, no direct testimony as to his knowledge can be obtained, and information on that point must be looked for elsewhere. While he had ridden over this section of the road for a year or more, no one has been produced to show that he had ever ridden upon one of the high cars, or that his attention was ever called by any one to the risk of so doing. The jury found that he was not familiar with the furniture cars; also, that he was proceeding in the discharge of his duties when he was killed; and there are also findings which tend to show that he did not realize that he was approaching | the bridge in question when he was killed, or comprehend the danger from riding on top of the furniture car. So far as the testimony goes, he was not informed of the danger when the high cars were introduced, no change of rules relating thereto was promulgated by the company, no warnings were given or signals placed on or near the bridge, he had no actual knowledge of the risk, and, as it is one which is not easily observed from the top of a moving train, the question of whether he was guilty of contributory negligence in not ascertaining, by measurement or accurate observation, whether he could pass safely under the overhead timbers of the bridge while standing erect on the furniture car, is a question of fact, rather than of law, the determination of which is necessarily for the jury. Railroad Co. v. Irwin, 37 Kan. 701, 16 Pac. 146; Railroad Co. v. Mortenson, 11 C. C. A. 335, 63 Fed. 530. See, also, City of Osage v. Brown, 27 Kan. 74; Railroad Co. v. McCandliss, 33 Kan. 366, 6 Pac. 587; Railway Co. v. Neiswanger, 41

Kan. 621, 21 Pac. 582; Dewald v. Railroad Co., 44 Kan. 586, 24 Pac. 1101; Darling v. Railroad Co. (R. I.) 24 Atl. 462; Stirk v. Railroad Co., 79 Ga. 495, 5 S. E. 105; Beach, Contrib. Neg. §§ 448-451; 16 Am. & Eng. Enc. Law, 465.

Complaint is also made of the refusal of certain instructions requested by the railroad company, but an examination of the record satisfies us that those which were pertinent and important were embraced in the general instructions of the court, and that the case was fairly presented to the jury by the charge that was given.

It is also claimed that the court committed error in failing to require the jury to give a more specific and definite answer to the ninety-sixth question that was submitted to the jury. As will be seen, the question is very general and complex in its character, and for that reason it might have been refused in the first instance. Another objection to the question is that it omits the element of any knowledge of the risk by the employé. Aside from that, a large number of questions were submitted to and answered by the jury, and these covered the facts of the case so fully that there is little cause for complaint in that regard.

The misconduct of the attorney for plaintiff below in the argument of the case is assigned for error. The language used by him was certainly intemperate and improper. Nothing can be said in justification of such practice, and, under some circumstances, the misconduct would be deemed sufficient to compel a reversal of the judgment. As counsel was proceeding with the statements to which exceptions have been taken, an objection was made by the railroad company, when counsel for plaintiff below remarked: "I withdraw that statement, and ask the court to instruct the jury to disregard it." And thereupon the court stated: "Yes; that will be done." While the remark of the court was made in the presence and hearing of the jury, no specific withdrawal was made, nor was any further notice taken of the misconduct. It was the duty of the trial court to keep counsel within the bounds of proper argument, and to promptly rebuke any attempt to bring in extraneous matters with a view of influencing or prejudicing the jury. It is generally held to be sufficient, where improper remarks are made in argument, that an objection is sustained by the court, and the jury are advised to disregard the objectionable remarks in their consideration of the case. Whether the action taken by the court in this instance was sufficient to cure the error may be a matter of some doubt. Assuming, however, that there was prejudice, the misconduct cannot, as the record stands, be made a ground of reversal. While one of the grounds alleged in the motion for a new trial was the misconduct of the plaintiff, it was not supported by affidavit. The statute specifically prescribes that

to obtain a new trial for misconduct of the prevailing party, the motion must be sustained by affidavits showing the alleged charge to be true. Civ. Code, §§ 306, 309. The improper remarks of counsel in argument have always been treated as misconduct, and, as such, it is imputable to the party for whom he appears; but, as the defendant below failed to sustain the charge of misconduct in the manner prescribed by statute, the objection has not been properly saved, and is therefore not available as a ground of reversal.

The judgment of the district court will be affirmed. All the justices concurring.

(55 Kan. 71)

SMITH et al. v. EPLEY et al. (Supreme Court of Kansas. April 6, 1895.) FRAUDULENT CONVEYANCES-MORTGAGE ON STOCK IN TRADE.

Where a merchant who has given a chattel mortgage for $1.520 upon a small stock of goods, valued at about $3,000, and is permitted by the mortgagee to remain in possession of the stock as the owner, and there is no provision in the mortgage as to what the mortgagor shall do with the proceeds of the sales thereof, and the mortgagor, with the permission of the mortgegee, continues for many months to sell the stock of goods at retail in the usual course of business, is permitted to use the proceeds of the sales in any manner he pleases, without regard to the mortgage debt, and does not apply any part of the proceeds to pay the debt secured by the mortgage, the mortgage is void as to the creditors of the mortgagor, and also void as to a creditor who obtains a lien thereon by a subsequent chattel mortgage to secure his claim, although he has notice at the time of accepting his mortgage of the existence of the prior void mortgage.

(Syllabus by the Court.)

Error from district court, Greenwood county; C. A. Leland, Judge.

Action in replevin by Smith, Heddens & Co. against J. W. Epley, defendant, and Henry Beck, intervener. From the judgment rendered, plaintiffs bring error. Reversed.

On the 8th of January, 1889, Henry Beck sold a general stock of merchandise, worth about $3,000, located in the Beck building, in Quincy, Greenwood county, to J. W. Epley and C. M. Shaw, partners as Epley & Shaw. On the 4th of March, 1889, Epley & Shaw made a chattel mortgage on this merchandise to Henry Beck, to secure a note for $1,520, a part of the purchase money remaining unpaid. Beck's note was not due until January 8, 1890. In March, 1889, Epley bought out the interest of his partner, Shaw, and paid him $300 for the same, from the proceeds of the sale of the goods. After Epley purchased the interest of his partner, Shaw, he continued in possession and conducted the business until November 25, 1889, running the business as A retail store. He purchased new goods in large amounts during that time, mingling the same with the goods of like kind mortgaged to Beck, with the knowledge of Beck, and without objection from him. During this time, Epley sold out of the store over $3,000

worth of goods, but made no payment to Beck, made no account to him, and was not requested to do so, and there was no agreement between the parties that he should do So. The mortgage of the 4th of March, 1889, from Epley & Shaw to Beck, contained the following provisions: "The property sold is to remain in possession of said parties of the first part until default be made in the payment of the debt and interest aforesaid; or some part thereof; but in case of a sale or disposal or attempt to sell or dispose of the same, or a removal of or attempt to remove 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 become inadequate, the said party of the second part may take such property into his own possession; and upon taking said property into his possession, either in case of default or as above provided, said party of the second part shall sell the same at publie auction or private sale; and after satisfying the aforesaid debt and interest thereon and all necessary costs, charges, and expenses incurred, out of the proceeds of the sale, he shall return the surplus to said parties of the first part, or their legal representatives; and if, from any cause, said property shall fail to satisfy said debt and interest aforesaid, said parties of the first part hereby agree to pay the deficiency." This mortgage was filed for record on March 28, 1889. On November 20, 1889, Epley executed to Smith, Heddens & Co. a chattel mortgage on the stock of merchandise he then had, to secure them the payment of $600, being a balance due them for goods sold to him by them at various times prior thereto, and by him placed in the store. This mortgage was filed for record November 21, 1889. Before the mortgage was executed, Smith, Heddens & Co.'s agent, having charge of the collecting of their account, was informed by Epley of Beck's mortgage On the 23d day of November, 1889, Smith, Heddens & Co. commenced their action of replevin against J. W. Epley, to recover possession of the mortgaged property from him; and on the same day the sheriff took the property from Epley, and on the 25th delivered the same to plaintiff, under the writ in that action. On December 14, 1889. Epley filed his answer to the action; and on the 14th day of January, following, Henry Beck filed an answer or interplea, in which he claimed "one-half of entire portion" of the goods mortgaged to him, and taken in replevin against Epley. To this answer was attached a copy of the mortgage of Shaw & Beck. On the 23d day of January, 1890, the case was called for trial in the district court of Greenwood county, and Epley withdrew his defense. The plaintiffs demanded judgment on the pleadings. The court denied this, and allowed Beck to amend his answer. The court allowed, subsequently, further amendments, by interlineations. Plaintiffs renewed their demand for judgment on

the pleadings, which was refused, and plaintiffs then filed a reply to the amended answer of Beck, being a general denial, and specially denying that Beck had any right to the property, or that his mortgage had ever been filed for record, or that the property taken in replevin, or any part thereof, was the same as that described in Beck's alleged mortgage, and setting up that Beck's mortgage was fraudulent and void. A trial was had to a jury, and the jury made special findings of fact, which they returned with their verdict. The verdict was to the effect that Beck was entitled to a certain portion of the property, and that plaintiffs were entitled to the residue. Plaintiffs asked the court to render judgment for them against Beck and Epley, notwithstanding the verdict, which motion was taken under advisement by the court till May 7, 1890, at which time the motion was overruled. Plaintiffs then presented their motion for a new trial, which was overruled. Thereupon the court rendered judgment in favor of Beck for the possession of the portion of the property mentioned in the verdict, or for its value if a return could not be had, and for costs.

The jury made the following among other special findings of fact: "(6) Did J. W. Epley, after he became the sole proprietor, continue to sell said stock of goods in the usual course of trade? Ans. Yes." "(9) Is, it not a fact that said Henry Beck had knowledge of the selling of said goods, and neither made objection nor demanded or asked for any of the said proceeds? Ans. Yes. (10) Is it not a fact that all the proceeds of the sales of said goods were used by said J. W. Epley or his partner, while he had one, in carrying on their business generally, to bear their personal and business expenses? Ans. Yes. (11) Is it not a fact that a part of the said proceeds were used by J. W. Epley in the purchase of other goods to be placed in said store? Ans. Yes." "(13) Did Mr. Beck know of these purchases of new goods? Ans. Yes. (14) Did he object to the same? Ans. No. (15) Did Mr. Beck trade with Mr. Epley? If so, did he pay cash, or have it credited on his indebtedness? Ans. Yes; he paid cash. (16) Is it not a fact that Mr. Beck never objected to the manner of doing business by J. W. Epley, and the manner of using the proceeds of the sales made by him? Ans. Yes. (16a) Is it not a fact that J. W. Epley had full possession and control of the proceeds of all sales made of goods, with power to use the same in any manner he pleased? Ans. Yes. (17) Was there any agreement between Mr. Beck and Epley that the proceeds of the sales of said goods should be paid to Mr. Beck? Ans. No. (18) Is it not a fact that Mr. Epley used the same just as he pleased, and in any manner his wishes might dictate, and at times for the payment of his private expenses? Ans. Yes. (19) Is it not a fact that J. W. Epley purchased the interest of his partner, C. M. Shaw, for about $300?

Ans. He paid in $300; and drew out $300. (20) Is it not a fact that he paid Shaw for said interest from the sales of goods sold in the usual course of trade? Ans. Yes." "(22) Is it not a fact that all cash received for the sales of goods was indiscriminately placed in the cash drawer, regardless of what goods produced said cash? Ans. Yes." "(24) Was J. W. Epley in possession of and selling said goods mortgaged to Henry Beck as the owner thereof? If not, state in what capacity he was so acting. Ans. Yes. (25) Was J. W. Epley in possession of and selling said goods mortgaged to Henry Beck as the agent of Beck? Ans. No." The plaintiffs bring the case here.

Rossington, Smith & Dallas, Geo. O. Blake, and Kelley & Lamb, for plaintiffs in error. W. R. Biddle, for defendants in error.

HORTON, C. J. (after stating the facts), The principal question presented in this case is whether the chattel mortgage executed by Epley & Shaw to Henry Beck is void as against the creditors of J. W. Epley. A few days after the execution of the mortgage, Epley purchased the interest of his partner, C. M. Shaw, in the mercantile business in which they were engaged. From that time to the 23d of November, 1889, when the goods were seized under the mortgage to plaintiffs, Epley was in the possession thereof, as the owner, and sold the same at retail, in the usual course of business. With the knowledge of Beck, and without any objection from him, Epley had the power to use the proceeds of the sales of the mortgaged property in any manner he pleased, even for the payment of his private expenses. There was no agreement between Epley and Beck that any of the proceeds should be paid to the latter. No part of the sales were applied to pay the indebtedness secured by the chattel mortgage or for the benefit of the mortgagee. In fact, all sales were made by Epley in his own behalf and at his own discretion, and with control of the proceeds reserved to himself. We have ruled that "a power given to the mortgagor to sell the whole of the mortgaged property would really render the mortgage nugatory, and the mortgagor would still remain substantially the owner of the property. Such a power in any mortgage would be inconsistent with any supposed incumbrance granted by the mortgage." Rathbun v. Berry, 49 Kan. 735, 31 Pac. 679; Leser v. Glaser, 32 Kan. 546, 4 Pac. 1026; Implement Co. v. Schultz, 45 Kan. 52, 25 Pac. 625. As the business of J. W. Epley, after the giving of the mortgage to Beck, was carried on for about eight months the same as before, as the proceeds of the sales were used by Epley as he saw fit for the purchase of new goods, and for his personal expenses, without any regard to the mortgage debt, with full knowledge and consent of Beck, the mortgage is void as to the plaintiffs and other creditors. The reasons for the invalidity of the Beck