eral verdict. These motions were overruled. Thereupon the railway companies filed their motions for a new trial containing the usual statutory grounds. These motions were heard on the 20th of May, 1890, and overruled. Thereupon the court rendered judgment in favor of J. H. Sparks and against the railway companies for $10,000, with costs taxed at $382.64. The railway companies excepted, and bring the case here.

J. H. Richards and C. E. Benton, for plaintiffs in error. J. D. Houston and W. H. Boone, for defendant in error.

HORTON, C. J. (after stating the facts). The Ft. Scott, Wichita & Western Railway Company on the 18th day of May, 1888, made a written contract with J. H. Sparks to transport eight car loads, consisting of 107 head of cattle and 75 hogs, from Conway Springs, in this state, via Kansas City, Mo., to Chicago, Ill., and to carry Sparks on the train in which his stock was taken. The contract was signed by Sparks and C. M. Stewart, the agent of the railway company, in duplicate. One was delivered to Sparks prior to the shipment of the stock, and the other was retained by the agent of the railway company. The contract contained the following provisions: "For the consideration aforesaid, the said second party hereby further agrees that the said persons in charge of said stock under this contract shall remain in the caboose car attached to the train while the same is in motion, and that whenever such persons shall leave the caboose car, or pass over or along the cars or track, they shall do so at their own risk of personal injury from every cause whatever, and that the said first party shall not be required to stop or start its trains or caboose cars from depots or platforms, or to furnish lights for the accommodation or safety of such persons." At the date of the contract the stock was shipped from Conway Springs, and Sparks had accompanying him James M. Harper, J. A. Fowler, J. C. Dudley, and R. F. Hargrove, as attendants of the stock. The train consisted of 11 cars of stock, a caboose, an engine, and tender. Between Conway Springs and El Dorado, Sparks and his men rode in the caboose car attached to the train, arriving at El Dorado, in this state, the end of a division, about 8 o'clock p. m., on the 18th. The train stopped at the station, with the engine at the water tank. Sparks was a regular shipper of stock over the road, and had general knowledge of the depot and yards at the station. Before their arrival at El Dorado, Sparks and his men were notified that they would have to change cabooses. Sparks got out of the caboose after the train had come to a full stop, and started with Harper and their luggage for the outgoing caboose. After the arrival of the train at El Dorado the incoming caboose was detached from the train, and placed on a switch north of the main track. The outgoing caboose was located on a switch south of the main track, and 400 to 500 feet

They

from the point where the incoming caboose stopped. This caboose had a red light on the outside at its west end. There was only one track-the main track-between the incoming caboose and the outgoing caboose. There were no switch engines or trains moving at the time in the yards at the station, except the train carrying Sparks' stock. Main street, near the passenger depot, and not far from where the west end of the stock train stopped on its arrival at the station, was lighted by an electric arc light, and there was light at the depot and other parts of the yards. The direction of the outgoing caboose was pointed out to Harper, who was with Sparks. The latter, with Harper, walked eastward in the direction of the outgoing caboose from 200 to 300 feet. This caboose was from 200 to 300 feet further east. While proceeding on their way in the direction of the outgoing caboose, they came up to the main stock train. mounted with their luggage to the top of the nearest car, directly after which they, together with the other three attendants, were transferred to the point of the outgoing caboose. They got on the top of the stock car about four minutes after leaving the incoming caboose. James M. Harper, a witness for plaintiff below, testified, among other things, as follows: "Q. If any one suggested that you get on top of the car that you did finally get onto, who made the suggestion to get up there? A. Mr. Sparks. Q. State fully how he came to make this suggestion,-the circumstances of it. A. That if we got on top of the car in which the stock was loaded we would run no chance of being left, and he was not certain as to the caboose we were to get into. Q. I will ask you to state if you didn't insist on going and getting into the caboose. A. There was an argument, a little controversy, between Mr. Sparks and me as to what caboose we would get into. I was going to the caboose myself, and he said to get on the train, and we would not be left. Q. What car did you get onto? A. A car belonging to the Missouri Pacific. Q. Where was this car? A. This car was east of the caboose which we were on. Q. How far east? A. Well, I should judge about a block and a half,-a block, possibly. Q. What did Mr. Sparks do after you got on top of the car? A. Mr. Sparks went on ahead to look after the cattle just immediately after we got on. Q. When the train was backed back on to the caboose, where was Mr. Sparks? A. He was on top of the box car. Q. And when you climbed onto it? A. Yes, sir. Q. How many persons up there at that time? A. I am not certain whether all five were up or not on top of that box car. Q. What did you do immediately after the train was coupled on to the caboose? A. We put our provisions into the caboose,provisions and luggage. Q. How did you do that? A. We handed them down from the top of the car to a person standing at the end of the caboose, receiving them into the caboose. Q. What did you do next,-what did

Sparks testified, among other things, as follows: "Q. Did you have a conversation with Mr. Harper about getting upon that cattle car, and didn't he tell you that he wanted to go on the caboose? A. I don't remember whether he did or not; I think I had some conversation with him, no doubt. Q. And he wanted to go on down to the caboose? A. Yes, sir. Q. And you said, ‘No; we'll get upon the box car, and then we will be sure to find our car'? A. Yes, sir. Q. And then you got upon top of the box car. Did you get up immediately after this conversation was had? A. Yes, sir. Q. How soon after this conversation was had before you got up? A. I don't remember just how long. I suppose it was done quick, of course. Q. Well, about how long after this conversation was it that you got upon this box car,how long before you went to get up? A. I couldn't scarcely form an idea what length of time or what the conversation consisted of. Q. Don't you remember before going on the train of the employés telling you that, before you got there, there would be a caboose waiting? A. I don't remember their telling us, but I knew they had to have a caboose to take us on. Q. Well, don't you remember of their telling you that? A. I don't remember it. A man wouldn't have to ask that question. Q. You knew there was always a caboose there to take you on? A. Yes. Q. And that the caboose was generally on the house track? A. Yes, sir; on the east end. Q. On what is called the 'house track'? A. I don't know about the track. Q. Well, it is a track that runs from the back of the depot on the south side of the yard. A. I couldn't say; I hadn't time to locate the depot. Q. You had been there frequently? A. Yes, sir. Q. You knew the ordinary distance between these cabooses? A. Yes; I knew about how long the switches were. Q. After you got on top of that car, what became of you? A. Well, they handed down the luggage, some of the other fel

heard a number of hogs squealing like there was steers laying on them, and we started to go and see about them, but saw we were not able to do it, and immediately started back, and the other party got in. I would have got in, I suppose, if it hadn't been for the bridge. One man got in ahead of me. Q. And you stood there and was waiting until they had got in, and out of your way? A. Yes, sir. Q. Were you standing with your back to the engine? A. Yes, sir. Q. Looking down towards the caboose? A. Yes, sir. Q. Ready to get in? A. Yes; I was standing ready to get in. Q. How far was that from the place they hitched on to the caboose? A. I couldn't say certainly; not very far.-150 yards or such a matter. Q. At about what rate were the trains running? A. Quite a lively rate. I couldn't say how fast. It was down grade, and, of course, it was double quick. Q. What became of you? A. Well, that's as far as I know. Q. Well, where do you remember of being? A. They brought me back home to Conway Springs."

When Sparks was knocked off of the top of the caboose he was severely injured. Under the written contract between the Ft. Scott, Wichita & Western Railway Company and Sparks, the latter was required to "remain in the caboose car attached to the train while the same is in motion." This was a reasonable contract. It was intended for the safety and convenience of Sparks, who was a passenger, as well as for the protec'tion of the railway company. It does not contravene any law or a sound public policy. We perceive no good reason why its provisions may not be fully enforced. Goggin v. Railroad Co., 12 Kan. 416; Sprague v. Railway Co., 34 Kan. 351, 8 Pac. 465; Express Co. v. Foley, 46 Kan. 457, 26 Pac. 665; Railway Co. v. Langdon, 92 Pa. St. 21; O'Donnell v. Railroad Co., 59 Pa. St. 239; Creed v. Railroad Co., 86 Pa. St. 139, distinguished; Sedgwick v. Railroad Co. (Iowa) 34 N. W. 790; Bates v. Railroad Co. (Mass.) 17 N. E. 638.

Sparks, when he climbed upon the top of the car attached to the stock train, and stood there or walked upon the top of the cars while the train was in motion, was not only in a place of obvious danger, but was also violating the express terms of his written contract. Railroad Co. v. Lindley, 42 Kan. 714, 22 Pac. 703; Player v. Railway Co., 62 Iowa, 723, 16 N. W. 347; Martenson v. Railroad Co. (Iowa) 15 N. W. 570; Goldstein v. Railway Co. (Wis.) 1 N. W. 37; 2 Wood, Ry. Law, pp. 1109-1114, § 304; Railway Co. v. Langdon, supra; Railway Co. v. Miles, 13 Am. & Eng. R. Cas. 10; Thomp. Carr. 265.

Upon the admitted facts and the findings of the jury, Sparks cannot recover for his injuries which resulted from his occupying voluntarily a place of danger on the top of a moving car or train, in violation of the

terms of his contract. Railway Co. v. Langdon, supra; Sedgwick v. Railroad Co., supra; Bates v. Railroad Co., supra.

It is suggested on the part of the plaintiff below that he could not, under the terms of his contract, pass over or along the tracks at El Dorado from the incoming and the outgoing caboose without violating his contract, and therefore that he had the privilege of climbing upon the top of the car to ride to the outgoing caboose. The cabooses were only 400 or 500 feet apart, and Sparks had walked about half of that distance in the direction of the outgoing caboose before he got on top of the car. There was no necessity for his crossing any switch to get to the outgoing caboose, and the only track between the two cabooses was the main one. The jury found that there were no other trains in the yards of the railway company at El Dorado after Sparks reached there, except the train carrying his stock, and the jury also found that there were no switch engines passing back and forth or running in the yards. Therefore Sparks incurred no risk of any personal injury in walking from the incoming to the outgoing caboose. The yards of the railway company at the station, upon the night of his injury, were not a place of obvious or apparent danger. The court instructed the jury: "In this case it is not denied that the plaintiff signed a contract of shipment or bill of lading, expressly providing that he would remain in the caboose car attached to the train while it was in motion, and that this agreement was binding upon the plaintiff, and would be sufficient to prevent a recovery by him upon the admitted facts, unless it were shown that there was either some actual necessity which impelled him after the train arrived at El Dorado to climb to the top of a stock car, and remain in that position until the time of the accident, or some apparent necessity, under the surrounding circumstances, which would have led a man of ordinary caution and prudence to do as he did." This instruction was misleading upon the facts disclosed upon the trial. It is true that Sparks testified that while walking in the direction of the outgoing caboose some one said, "Let's go on top." But neither Sparks nor any other witness testified that this exclamation came from the conductor or any one in charge of the train.

Again, an attempt is made to excuse the conduct of Sparks in violating his contract, because the conductor, before arriving at El Dorado, informed him and his men that he was in a hurry, and would not stop over five minutes at the station (see Railway Co. v. Elliott, 5 C. C. A. 347, 55 Fed. 949), and that it had been his custom upon other occasions to climb on top of the cars and ride to the outgoing caboose. It appears that the stock train was much longer at El Dorado than five minutes, and it also appears that, at the instance of Sparks, the conductor made a change of three cars containing his stock,

which were at the front end of the train when it arrived at the yards, to the end of the train, and next to the outgoing caboose. During the time these cars were being shifted in the trains, Sparks was on top of one of the cars shifted. He did not request the conductor, or any of the trainmen, to give him more time to walk from one caboose to the other, and he made no request concerning his stock or the train not complied with. The trial court did not rest this case with the jury upon any custom of the railway company transporting stockmen on the top of cars from one caboose to another at El Dora do. On the other hand, the court observed to the jury that this custom "could not of itself justify or excuse the plaintiff for assuming any extrahazardous position." But it does not appear that when Sparks or other persons rode upon the top of cars, with the consent of the trainmen, they had contracted in writing not to do so. But, waiving all this, the contract in this case is controlling, Its terms cannot be set aside by mere usage or custom. Mason v. Railway Co., 27 Kan. 83; Warren v. Railway Co., 37 Kan. 409, 15 Pac. 601; Railroad Co. v. Estes, 37 Kan. 715, 16 Pac. 131; Railroad Co. v. Womack (Ala.) 4 South. 619; 1 Thomp. Neg. 453-459; Ferguson v. Railway Co., 58 Iowa, 293, 12 N. W. 293; Kroy v. Railroad Co., 32 Iowa, 357; Golf v. Railway Co. (Wis.) 58 N. W. 409; Clark v. Railroad Co., 36 N. Y. 138.

We are referred to Railroad Co. v. Horst, 93 U. S. 291, as favorable to a recovery by the plaintiff below. In that case the conductor in charge of the train commanded the shippers to get out of the caboose and go on top of the cars. In this case there is no claim that Sparks was commanded by the conductor to go on top of the cars. This case differs from the Horst Case. Here was a written contract that Sparks should remain in the caboose while the car was in motion. Not so in the Horst Case. Upon the admitted facts and the findings of the jury, the judgment will be reversed, and cause remanded, with direction to the district court to render judgment for the plaintiffs in error, defendants below. All the justices concurring.

(55 Kan. 104) DIEBOLD SAFE & LOCK CO. v. HUSTON et al. (Supreme Court of Kansas. April 6, 1895.) SALE-WARRANTY-PARCL EVIDENCE.

Plaintiffs orcered from the defendant a No. 4 fireproof safe. The order was in writing. It contained no reference to a warranty. A safe was delivered in compliance with the order, and received and used by the plaintiffs to store valuable papers. The building in which it was kept was afterwards destroyed by fire, and some of the contents of the safe were consumed. Held: (1) That parol evidence was inadmissible to prove a warranty made at the time the order was given; (2) that the words "fireproof safe" do not imply a warranty of the quality of the safe, or that it will protect its

contents from fire for any definite period or under any given circumstances

(Syllabus by the Court.)

Error from district court, Nemaha county; R. C. Bassett, Judge.

Action by Huston & Breeding against the Diebold Safe & Lock Company. Plaintiffs had judgment, and defendant brings error. Reversed.

This case was commenced before a justice of the peace of the city of Seneca, and the plaintiffs obtained judgment for $172 and costs. The defendant appealed to the district court, where an amended petition was filed, alleging, in substance, that the plaintiffs, or or about the 25th of July, 18 9, purchased of the Diebold Safe & Lock Company a No. 4 Diebold safe, which was represented and guarantied to be fireproof, for which the plaintiffs agreed to pay $72, one-fourth cash, and the balance in three equal payments; that on the 18th day of January, 1890, the building in which the safe was situated was burned, and the contents of the safe, consisting of notes and accounts, contracts, and other valuable papers, contained in said safe, were burned; and asking judgment for $247. J. L. Breeding, one of the plaintiffs, testified that "the agent warranted it to be fireproof. He stated that the company always did that; that they guarantied all their safes." He also testified that at the same time a duplicate contract was entered into for the purchase of the safe. The one of these duplicates signed by the plaintiffs was introduced in evidence, and reads as follows: "Seneca, July 23, 1889. Brintnall & Harrison, General Agents, Diebold Safe and Lock Company: Please send me as soon as convenient one No. 4 fireproof safe, approximate size inside 19 inches high, 15 inches wide, 12 inches deep, as per page 8 of illustrated catalogue, and plan of interior as specified on back of this order. Marked to Huston & Breeding, town of Seneca, county of Nemaha, state of Kansas. Ship via town of St. Joseph, and rent same to undersigned on following terms: F. O. B. cars in Seneca, Kas. $72.00, as follows: $18.00 upon arrival; balance in 3 notes, of $18.00 each, due, respectively, in 3, 6, & 9 months from shipment. Said safe to be one of your latest styles, with all your latest improvements, and to be as per illustrated catalogue. Front of safe to be a dark wine color, and finished in gold, and to be nicely finished and ornamented in your latest style. This order subject to the approval of Brintnall & Harrison. All notes given are to bear interest at the rate of eight per cent. per annum. It is agreed above sums are to be paid as rent for said safe. When the full amount of $72.00 is paid, you are to give me a bill of sale of safe. If note is not forwarded to you at the expiration of twenty days from date of invoice, all rent shall become due at the expiration of thirty days from date of bill, and agree to accept and pay draft of amount

mentioned below, and are not to countermand or attempt to annul this contract. It is agreed that the title of said safe shall not pass until notes are paid or safe paid for in cash, but shall remain your property until that time. In default of payment of said rent, you or your agent may take possession of and remove said safe without legal process. Nothing but shipment or delivery constitute an acceptance of this contract. It is also hereby expressly agreed and understood that the foregoing embodies all the agree ments made between us in any way, hereby waiving all claims of verbal or other agreements of any nature not embodied in this contract. I hold a duplicate copy of above contract. Agents not authorized to make collections. Amount, $72.00. Truly yours, Huston & Breeding. Witness: -." The jury rendered a verdict in favor of the plaintiffs for $247, for which amount the judgment was entered. The defendant brings the case to this court.

Samuel K. Woodworth, for plaintiff in error. E. G. Wilson, for defendants in error.

ALLEN, J. (after stating the facts). The plaintiff testified to an oral warranty that the safe was fireproof, by the agent of the defendant. It will be observed that the written order for the safe, made at the time, expressly provides that the title should remain in the defendant until the full purchase price should be paid. The evidence shows that $18 was paid at the time of the delivery of the safe, and that the first note was afterwards paid. At the time of the fire, two notes still remained unpaid, and the title to the property, therefore, was still in the defendant. There could not, then, be a technical warranty of the article sold. It is not necessary, however, to nicely inquire into the difference in the mode of recovering damages for a breach of warranty and those resulting from the use of an article furnished for a particular purpose under a bailment. The only question we deem it necessary to decide is whether, under the testimony, any such warranty was made as would entitle the plaintiffs to recover irrespective of the technical question. It appears from the plaintiff's own evidence that the agreement which he entered into with the agent of the safe and lock company was reduced to writing. Oral evidence, therefore, is inadmissible to vary or enlarge its terms. Drake v. Dodsworth, 4 Kan. 160; Brenner v. Luth, 28 Kan. 581; Hopkins v. Railway Co., 29 Kan. 544; Furneaux v. Esterly, 36 Kan. 539, 13 Pac. 824; Windmill Co. v. Piercy, 41 Kan. 763, 21 Pac. 793; Willard v. Ostrander, 46 Kan. 591, 26 Pac. 1017.

It is clear that the safe was delivered to the plaintiffs in compliance with the terms of the written order. Does this order contain what in law amounts to a warranty? There are no words in it of express warranty. Does an order, however, for a fire

proof safe, imply a warranty? It is contended that this is a case of a sale of an article of the vendor's manufacture for a particular purpose, and imports a warranty that it is reasonably fit for that purpose, and free from latent defects arising in the process of manufacture, and not disclosed to the vendee. In the case of Lukens v. Frieund, 27 Kan. 664, it appeared that the defendant was a miller; that two copper clasps accidentally fell into some bran which was sold to the plaintiff. The clasps were swallowed by one of the plaintiff's cows, and killed her. It was held that, in the absence of express warranty, the plaintiff could not recover for his cow. The second clause of the syllabus reads as follows: "While, when an article is ordered from a manufacturer, to be by him manufactured for a specific and understood purpose, there is in some cases an implied warranty that the article, when manufactured, will be reasonably fit for the purpose intended, yet, when a purchase is made from him of a specific and completed article, he is to be regarded as a dealer, and his liability determined accordingly." There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendants manufactured for sale to whomsoever would buy. It is designated in the order as a "No. 4 fireproof safe," and the order provides that it shall be one of the defendant's latest styles and improvements; thus clearly indicating that it is one of a kind of safes manufactured by the safe and lock company. "There is in America an implied warranty of identity; namely, that the article shall be of the kind or species it purports to be or is described to be,—that is, that the article delivered shall be the same thing contracted for." Benj. Sales (6th Ed.) 636. This proposition is illustrated in the following cases: In Henshaw v. Robins, 9 Metc. (Mass.) 83, a sale and bill of parcels of two cases of indigo was made. It was shown that the article paid for and delivered was not indigo at all, but composed of Prussian blue, chromate of iron, and potash, and worthless for any purpose. It was held that the description of the article inserted in the bill of parcels amounted to a warranty that the article was such as represented. In Hawkins v. Pemberton, 51 N. Y. 198, it was held that the sale of an article as blue vitriol amounted to a warranty that it was such. In Wolcott v. Mount, 36 N. J. Law, 262, it was held that a sale of seed which the seller said was early strap-leaf, red-top turnip seed was equivalent to a warranty that it was such, and that the purchaser might recover the difference between the market value of the crop raised and the same crop from such seed as was ordered. In White v. Miller, 71 N. Y. 118, it was held

that, on a sale of "large Bristol cabbage seed" to a market gardener, there was an implied warranty that the seed was not only raised from such stock, but free from any latent defect arising from the mode of cultivation, and would produce that kind of cabbage. In Jones v. George, 61 Tex. 345, it was held that a sale by a druggist to a planter of an article as Paris green implied a warranty that it was that substance.

There is no doubt, under the authorities, that the article sold must answer in kind to the description under which it is sold, and that there is an implied warranty that the article delivered is such an article as the name under which it is sold indicates. When, however, the question arises whether an article is of a particular quality or degree of excellence, unless it is designated by some term which is descriptive of the article and calls for a particular quality, the general rule is that no warranty of quality will be implied. In Wolcott v. Mount, supra, it was said: "In general, the only contract which arises on the sale of an article by a description, by its known designation in the market, is that it is of the kind specified." In Winsor v. Lombard, 18 Pick. 57, it was held that, where a large number of barrels of mackerel branded under the inspection laws as No. 1 and No. 2 mackerel were sold in the spring with that description of them in the bill of parcels, it was not a warranty that the mackerel were free from rust, although it appeared that mackerel affected by rust are not considered as No. 1 and No. 2. In Gossler v. Refinery, 103 Mass. 33, it was held that "one who agreed to sell 'Manilla sugar' to refiners, and delivered to them what is usually called in commerce by that name, can, in the absence of fraud, misrepresentation, or warranty, recover the agreed price, though the article delivered contained more impurities than sugar known under that name usually does." The case of Shisler v. Baxter, 109 Pa. St. 443, seems to be opposed to White v. Miller, supra, holding that the sale of seed as Wakefield cabbage seed did not amount to a warranty that it was such, but was a representation as to quality. In Towell v. Gatewood, 2 Scam. 22, a bill of sale of good first and second rate tobacco was made. The court refused to treat this as a warranty, but rather as an expression of opinion as to the quality of the article sold, concerning which the buyer should have relied on his own judgment or obtained an express warranty. "The mere description of iron sold as mill iron in a bill rendered to the purchaser will not amount to a warranty that the same is of the quality or grade described, but will be regarded as a mere statement or expression of opinion as to the quality." Iron Works v. Moore, 78 Ill. 65. See, also, Ryan v. Ulmer, 108 Pa. St. 332; Dounce v. Dow, 64 N. Y. 411. In Fraley v. Dispham, 10 Pa. St. 320, it was held that a sale bill of superior sweet-scented Ken