not recover, unless it was slight as compared with that of the company.13

Evidence of Negligence.-The intensity of a jolt or jerk of the cars in a freight. train, and whether a jolt or jerk is unusual or extraordinary, are not, strictly speaking, scientific inquiries, and the opinion of any witness who has had opportunity to observe what is usual and customary in this respect in the operation of freight trains may testify relative thereto. The results of a jolt or jerk may be such, when shown, as to prove without further testimony that it was unusual and not a necessary incident of the operation of the train. But where there are no such facts, or they are, standing alone, insufficient or doubtful proof, the testimony of witnesses is needed, and they may give their opinions as to the relative violence thereof. This at once brings into question the knowledge or experience of the witness in respect of the operation of freight trains, for in order that one may testify as to the comparative force or value of a thing he must of necessity show knowledge of the thing compared with. We know, for instance, that any intelligent witness who has been accustomed to observe moving objects is competent to testify as to the rate of speed of a train or automobile or other moving object, but the weight to be given such testimony must depend upon the opportunity the witness has had to form a correct opinion. And where a witness testifies to the relative or comparative speed, he should have some standard of rapidity with which to compare, otherwise his opinions are of little value. So, a witness' testimony may be of slight or great probative value, accordingly as he has had little or much experience in observing the operation of freight trains. However, a witness' testimony is of no value where he has had

(13) Rockford, R. I. & St. L. R. Co. v. Coultas. 67 III. 398.

but little experience in observing the operation of such trains.

In the case of Farmer v. St. Louis, I. M. & S. R. Co.,1 which was an action by a mail clerk (held to be a passenger) to recover for injuries received by him due to the violence with which an engine struck a mail car, immediately in front of the one in which he was working, in the process of making a coupling, it was held proper for other mail clerks who were present to testify as to the unusual force of the jar. These witnesses, it was said, showed themselves qualified by experience and observation to express an opinion as to what impact or concussion was usually and ordinarily incident to making couplings of the character here in question.

Of course, witnesses offering to testify on such a subject must state their experience in observing and experiencing the shocks and jars incident to the operation of such trains, in order to lend weight to their testimony, and the probative force of such testimony depends upon the amount of such experience the witness has had. In the case last mentioned, two of the mail clerks had been engaged in that occupation for more than six years, another about eleven years, another about twelve years, and another more than seventeen years. They were necessarily familiar by experience with the operation of mail cars and with the jars and jolts which they experienced ordinarily when couplings were made. They testified as to the force of the jar or impact usually and ordinarily incident thereto, related their experiences on this occasion, and the effect which this jar had upon them and upon the car itself, and said that it was much more violent than was ordinarily incident to effecting a coupling.

"The testimony of such witnesses," said the court, "is in the nature of ex

(14) Mo. App. 1913, 161 S. W. 327.

pert testimony, or at least is the testimony of witnesses qualified by experience in the particular matter in hand, whose opinions may be received concerning the force of the jar or concussion, especially as the latter is something which could not be specifically described. Such opinions are based, not upon assumed facts, but upon the witness' personal knowledge or observations. It has frequently been held that, under such circumstances, the facts upon which the opinion is based should be stated by the witness in order that the court and jury. may determine whether the conclusions based thereupon are real and whether the facts appear to justify such conclusion.

"These witnesses need not be regarded as experts, in the proper sense of that term; but their previous experience and observation had been such that they might properly testify to their inferences from the sensations experienced and the facts observed by them on the occasion in question, especially where the latter pertained to a matter, viz., the force of the concussion, as compared to that usually experienced, which could not be otherwise fully and adequately communicated to the jury."

In Hawk v. Chicago, B. & Q. R. Co.,15 the court, in passing upon the sufficiency of the evidence, said: "We do not find any evidence in the record before us from which it may be said with reason that the jolt which accompanied the stopping of the train was extraordinarily violent. Plaintiff depicts it as a 'terrible shock,' a severe shock, 'sufficient to knock the breath out of me,' but these expressions of a non-expert witness amount to nothing more than mere conclusions and possess no probative value."

So, in Young v. Missouri Pac. R. Co.1 the plaintiff and three witnesses testified their opinion to the effect that the "train.

(15) 130 Mo. App. 658, 664, 108 S. W. 1119. (16) Mo. App. 1904, 84 S. W. 175.

made a heave forward just like lightning," that "it was an awful hard jerk," and that "the jerk was the most severe I had ever experienced." In respect of this testimony the court said: “Of course, the manifestly hyperbolical expression of opinion that the train heaved forward just like lightning,' as evidence, cannot be given the weight of a feather. The other expressions of the witnesses prove nothing. The jerk or lurch may have been awful hard,' or the 'severest' the witness had ever experienced, and yet not that extraordinary or unusual jerk or lurch attributable to unskillful handling of the engine, or something of the kind. There was no fact proved to justify the inference that the jerk resulted from negligence."

17

In Ray v. Chicago, B. & Q. R. Co.17 the plaintiff attempted to qualify, as the court said, "as an expert witness in respect of shocks and jerks of freight trains by saying he had 'considerable experience' on such trains, and had shipped stock over this road for seven years, not testifying how often he accompanied hist stock." The court attached no importance to the testimony.

Application of Res Ipsa Loquitur.—The rule of res ipsa loquitur can only be applied where there is something which, if unexplained, tends to show that some negligence was the proximate cause of the injury.

It is insufficient to raise an inference of negligence that the plaintiff was injured by a jerk or jar in the movement or stopping of a freight train on which he was a passenger.18

Where the facts show that a passenger on a freight train was injured by an unusual and extraordinary jolt or jar, one which would not happen if those having the management of the train had used

(17) 147 Mo. App. 332, 126 S. W. 543.

(18) St. Louis & S. F. R. Co. v. Gosnell, 23 Okla. 588, 101 Pac. 1126.

proper care, the doctrine of res ipsa loquitur applies.19

Where plaintiff's intestate, who was killed by falling from the top of a freight car when it made a sudden stop, was shown to have been an experienced brakeman and conductor and one of the best, and it was also shown that a fall by brakeman from a train handled in the usual and ordinary way is an unusual occurrence, and these facts were corroborated by the evidence of a boy in the employ of the railroad company, who testified that "the train stopped very suddenly, unusually hard," it was held that a charge of negligence in the operation of the train was sustained, and a judgment in favor of the plaintiff, in an action to recover for such death, was affirmed.20

Speaking of the circumstantial evidence in this respect, the court said: "That the impact of the cars with the stop threw Brown (the intestate) forward and under the car is certainly fairly inferable. If it was an ordinary stop, from the testimony it is not probable that he would have been so thrown. That it was an unusual, sudden stop, and an unnecessary force and jar that caused the fall, is inferable from the facts proven. The evidence leaves no doubt that the occasion did not require such a stop and such unnecessary force and jar. The negligence is not inferred from the force and jar alone but from the facts in evidence which establish that there was no occasion for such a stop or force; hence negligence is presumed from such other facts. The fall and jar we estimate by inference, from certain proven facts, and negligence is established by the facts which show no occasion for the use of an extraordinary stop, force, or jar."

In Louisville & N. R. Co. v. Greenwell, however, it was held that negli

(19) Mitchell v. Chicago & A. R. Co., 132 Mo. App. 143, 68 Central Law Jour. 44.

(20) Ft. Worth & D. C. R. Co. v. Stalcup, Tex. Civ. App. 1914, 167 S. W. 279.

(21) 144 Ky. 796, 139 S. W. 934.

gence was not proved by evidence showing that a brakeman fell off the front of a freight car, forming part of a long train of cars being switched about the defendant's freight yards, by a sudden stop, which was supported by evidence that "the train seemed to make a sudden stop, and by some means-I don't know just how-jerked the cars;" that the noise could be heard for five squares, and that the brakeman was standing on a step at the end of the car stooping over.

Plaintiff was a passenger on a freight train which stopped at a water tank just before reaching a station. Thinking the train had reached the station. he went onto the back platform of the caboose to talk to a friend seated on the steps. When the train started again, he stepped back into the caboose, turned and was standing with his hands on the casings of the rear door, when the train suddenly stopped at the station with such a jar that he was knocked off his feet and his back injured in the fall against the corner of a box used for a seat. Passengers sitting down were not hurt, but two among others who were standing were also knocked down by the jar. As to the character of the stop, the plaintiff testified that he was familiar with the way freight trains start and stop, and that this stop was harder than usual. Another witness testified that it was a very hard jar, much harder than ordinary. On cross examination he stated, that he had observed other jars as hard as this; that the train reached a speed of about three miles an hour in pulling from the tank to the station. but that the jar was uncommon. Another passenger stated that the jar seemed unusually hard, "a little extraordinary." A passenger seated in the cupola of the caboose testified: "The jar that caused this party to fall was not an unusually severe hard one. Nothing more that usually occurs on freight trains." Held, that no inference of negligence on the part of the railroad company could

be drawn from these facts, and that a motion to direct a verdict for defendant should have been sustained.22

In passing upon this question, the question, the court, in the case last cited, said: "While it is not controverted that the jar occasioned the injury, it does not affirmatively appear, as it should in order to send the question of negligence to the jury, that the same was of extra severity and directly attributable to the negligence or careless handling of the engine by the engineer. In the absence of such evidence, we can but presume that the engineer did his duty, and that the sudden stop of the train and the jar which caused the injury arose from exigencies of the service. In arriving at such conclusion and that the jar caused by the stopping of the train was not ipso facto negligence. and hence the proof insufficient to take the question of negligence to the jury, we are not unmindful of the testimony of the passengers as to the character of the stop, but the same has no weight with us for the reason that the probative force thereof is nil, are mere expressions of opinion, and should not be considered in determining the question of the negligence of the defendant."

The defendant owned a short line of railway and operated thereon a freight train, with a caboose attached for the purpose of carrying passengers, mail and express. The caboose was partitioned, about two-thirds of the car being provided with seats for passengers and the other compartment occupied for the purpose of carrying express and mail as well as passengers. On either side of the car was a door about five feet in width, both of which were standing open on the day in question, as was usual in the summer time. Plaintiff became a passenger on this train, and chose a seat on the expressman's box, near one of the doors.

(22) St. Louis & S. F. R. Co. v. Gosnell, 23 Okla. 588, 101 Pac. 1126.

While the locomotive, which was detached from the remainder of the train for the purpose, was doing some switching at a station, plaintiff went onto the depot platform and while there observed that the caboose and about six cars were standing on the mian line, while the locomotive with other cars attached were engaged in switching. He then returned to the caboose and resumed his seat with his back in the direction in which the train was going. While thus seated and conversing with his fellow passengers, the locomotive with about six cars attached, endeavoring to make an automatic coupling, backed with great force against the cars to which the caboose was attached, and thereby precipitated plaintiff from his seat through the side door of the car to the ground, seriously injuring him.

The evidence tended to prove that the coupling was made with great force and produced an extraordinary jerk, jar and rebound of the caboose. Plaintiff and several passengers testified in effect that, although they were familiar with the operation of freight trains and frequent passengers thereon, it was the most severe and extraordinary jerk they had ever experienced. The evidence also tended to show that the force was sufficient to overturn the water tank, jar papers from the conductor's desk and pigeon holes, and lamps from their positions, and injure passengers seated in the car so as to produce headaches and lame backs. It was held that the evidence was sufficient to justify the application of the rule res ipsa loquitur.23

The doctrine cannot be applied in a case in which nothing further appears than that plaintiff, while a passenger on a mixed train, and while walking in the aisle of the coach, was thrown to the floor by a sudden jolt in the operation.

(23) Mitchell v. Chicago & A. R. Co., 132 Mo. App. 143, 68 Cent. Law Jour 44.

of the train, which he described as having "force enough to take me about four feet and the length of myself."24

An instruction that "A railroad company, as a rule, cannot be said to be negligent because there are occasional jars. and jerks in the operation of freight trains; though jars of great, unusual and unnecessary violence would be evidence of negligence on the part of employes operating the train," was held to be a proper exposition of the law.25

Where the only evidence as to the cause of injury to a passenger on a freight train was that he was lying in a bunk in the caboose, half asleep, when he suddenly found himself on the floor of the ca and then heard the clatter of the cars bumping together, in the work of the trainmen coupling them, it was held insufficient to raise an inference of negligence in the management of the train.26

Where a passenger on a mixed train was injured while standing in the aisle of the coach in which she was riding, by the violence with which other cars were switched against that coach, by means of a "kicking switch," but where there was no injury to the cars, and it was claimed that it was with no more force than necessary to couple the cars, it was held error to instruct that from the mere happening of the accident a presumption of negligence arises which puts the burden on the carrier to prove the absence of negligence.27

St. Louis, Mo.

C. P. BERRY.

(24) Wile v. Northern Pac. R. Co., 72 Wash. 82, 129 Pac. 889.

(25) St. Louis & S. F. R. Co. v. Coy, Ark. 1914, 168 S. W. 1106.

(26) Frohriep v. Lake Shore & M. S. R. Co., 131 Mich. 459.

(27) Yazoo & M. V. R. Co. v. Humphrey, 83 Miss. 721.

HOMESTEAD-CONTRACT TO SELL.

WAINSCOTT v. HALEY. (No.11322.)

Kansas City Court of Appeals. Missouri. Dec. 21, 1914.

171 S. W. 983.

A contract by a husband to convey his homestead is not void ab initio under Rev. St. 1909, $ 6704. declaring that the husband shall be incapable of selling the homestead, and every alienation thereof shall be void, but nothing shall be construed to prevent husband and wife from jointly disposing of it, but is valid as binding him to procure the execution by his wife of a deed, and, where she refuses to join in the is conveyance, he breaches his contract and liable for the damages sustained.

JOHNSON, J. This is an action to recover liquidated damages for the breach by defendant of an executory contract for the exchange of real property in the city of Nevada, owned by plaintiff and which was his homestead, for a farm of 160 acres in Vernon county, owned by defendant and occupied by him and his family as a homestead. The contract was not signed by the wife of either party, but at the time set for the exchange of deeds plaintiff tendered a warranty deed executed and acknowledged by him and his wife, and demanded a like deed from defendant conveying the farm. The wife of defendant would not join in the execution of such deed, and, being unable to perform the contract, he repudiated it as void from the beginning.

(1, 2) "The wife and children of the owner of a homestead have no estate or vested interest in the property during his lifetime, and laws forbidding a husband to sell or incumber the homestead without the wife joining do not give her an estate, but a mere veto power over his right to convey or mortgage." Bushnell v. Loomis, supra, 234 Mo. loc. cit. 385, 137 S. W. 260. The inchoate interest in the homestead possessed by the wife of the husband owner (Thorp v. Thorp, 70 Vt. 46, 39 Atl. 245) consists of the right to succeed him as the head of the family and owner of the homestead right upon his decease or abandonment of the family leaving it in possession and occupancy of the homestead (Williams V. Williams, supra).

(3) The right of the husband owner to sell and convey the homstead, if his wife join in the deed, is absolute, and, of course, is incompatible with the idea that the wife and children have any vested estate in the land, or that the wife possesses any other power than that of interposing her veto to the consummation of