waiving any provisions of the by-laws which relate to the contract between the member and the society, and by further declaring that the subordinate council and its officers are the agents of its members in the reinstatement of members and in the collection and transmission of all assessments to the National Council. [2] The court very properly instructed the jury that the acts of the officers of the local lodge, although unauthorized in the first instance, if ratified with the knowledge of the superior officers having authority, amount to a waiver of any right or forfeiture then existing in favor of the society and against the member; that notice given to the officers of the local lodge is imputed to the National Council; that the by-laws making the financier of the subordinate lodge the agent of the members is void; and that such financier is the agent of the defendant society in receiving dues and assessments. These instructions state the law as declared in former decisions. In receiving payments of dues and assessments the local financier was, in fact and in law, the agent of the defendant, and not of the member. The Ancient Order of the Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239; Fraternal Aid Association v. Powers, 67 Kan. 420, 73 Pac. 65; Benefit Association v. Wood, supra ; Mayes v. Knights and Ladies of Security, Kan. 841, 846, 142 Pac. 290. informed that Mrs. Estep was in bad health | ficer or member may bind the company by is another matter. The main contention of the defendant, raised by a demurrer to the evidence, objections to instructions given and refused, objections to certain special questions, a motion to set aside answers to certain questions, and the motion for a new trial may be summarized as follows: It is claimed the testimony shows, and the jury found, that Ida W. Estep was in bad health from and after the 19th of January, 1916, and that this being so, the provisions of the constitution and laws of the order set out in the answer established a complete defense to the action. In the first place, the testimony did not show, and the jury, as we construe their answers to the special questions, have not found, that Mrs. Estep was in bad health from and after the 19th day of January, 1916. There are some slight inconsistencies in the language used by the jury in the answers to the numerous questions submitted; but construing all of the answers together, it is manifest to our minds that the jury believed from the evidence that on the 31st day of January, 1916, when she was reinstated, Mrs. Estep was not in bad health, except as the jury seem to have regarded pregnancy as constituting, at least, not good health. They find she contracted the ailment or disease from which she died after January 31, 1916, so that it is not very important whether her health was good or bad on the 19th of January, if her condition at the time she was reinstated on January 31st had nothing to do with her death. In answer to an interrogatory submitted by the defendant, the jury say that Mrs. Estep's health was not bad except on account of her pregnancy. In the second place, the provisions of the constitution and laws of the order pleaded in the answer did not establish a complete defense to the action, because, as has been often decided, many of the provisions relied upon by the defendant may be waived, and some of them are void, and others will not be given the construction contended for by the defendant. These matters will presently be referred to in connection with the contention respecting error in the instructions. [1] It was not error to admit evidence of a custom of the local officers of the defendant to accept dues and assessments from members who are delinquent and to reinstate them. Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160, 3 Ann. Cas. 535, and authorities cited in the opinion; Benefit Association v. Wood, 78 Kan. 812, 817, 98 Pac. 219. Besides, the constitution and by-laws of the defendant expressly recognize this practice and custom, and attempt to avoid the effect of the acceptance through the local financier of past dues and assessments, by declaring that the retention of these dues by the head financier or by the order shall not constitute a waiver of any provision of the laws; that 92 [3, 4] With respect to the provision of the by-laws that the payment of back dues and assessments constitute a warranty on the part of the member that his health is good at the time, the court charged that before the jury could find from the evidence that there was a breach of this warranty, by reason of the bad health of the member, the nature or degree of such bad health must be material; that while there must be no evasion or fraud or suppression of material facts, and must be absolute good faith, yet where the evidence shows there has been no evasion or fraud, nor purpose to conceal any fact which the member would naturally under the circumstances suppose was required to be stated by her or on her behalf, and where the society has not been prejudiced or injured in any manner, such defense cannot be maintained. Most of the language of this instruction is a paraphrase of language used in the opinion in the recent case of Farragher v. Knights and Ladies of Security, 98 Kan. 601, 605, 159 Pac. 3. Whether the instruction was proper in this case, it cannot be said that it prejudiced the defendant, because of the special finding that at the time she was reinstated the member was not in bad health. The provision that no officer of a local lodge may waive any provision of the bylaws has no application to waiver by opera of the local officer. Modern Woodmen v. 13. CARRIERS 315(4)—INJURIES TO PASSENBreckenridge, 75 Kan. 373, 379, 89 Pac. 661, GER-ALLEGATION OF SPECIFIC NEGLIGENCE -RELIANCE UPON EVIDENCE. 10 L. R. A. (N. S.) 136, 12 Ann. Cas. 636. Respecting the attitude of the courts in discouraging forfeitures based upon laws and regulations of semibenevolent associations, see case last cited. [5] After accepting from the beneficiary Had plaintiff, passenger suing a street railway, in a separate count set forth his cause of action by allegations of specific negligence, he could have relied upon any pertinent evidence to establish the same. 4. NEGLIGENCE TUR-PLEADING. 119(7) - RES IPSA LOQUI the dues and assessments for the months of The legal presumption of negligence under December and January on Mrs. Estep's cer- the doctrine of res ipsa loquitur, when applicatificate and retaining them until after her ble, is conditioned on the absence of other evidence of negligence, not on the absence of averdeath, it was too late for defendant to ques-ments of negligence in the complaint, and a partion the authority of the beneficiary to make ty may rely upon it, though his pleading states the payments, if indeed it could at any time. the facts of the negligence of which complaint There was very little conflict in the testi- is made. if such facts are the ones which the mony as to the facts; the material find-legal inference of negligence tends to establish. ings appear to be sustained by evidence, and 5. NEGLIGENCE 119(1) — RES IPSA Loquithe legal propositions relied upon by the defendant, while not wholly unsupported by authority elsewhere, are no longer open questions in this state. Finally, it is insisted there was error in the manner in which the judgment was rendered. The verdict assessed the amount due the plaintiff at $953, with interest at 6 per cent. The petition had asked for this sum, with interest at 6 per cent. from March 11, 1916. The court rendered judgment for $953, with 6 per cent. from May 11, 1916, to the date of the judgment, making a total of $974.94. The defendant objected to the allowance of interest. The court might have directed the jury to correct their verdict by computing the interest and adding it to the amount found due, or the court might have computed the interest and prepared another form of verdict with the proper amount and directed the foreman of the jury to sign it. It cannot be doubted that plaintiff was entitled to interest on the amount of the certificate from the date of the death of the assured. The irregularity in the manner of rendering the judgment did not affect the substantial rights of the defendant. The judgment is affirmed. All the Justices concurring. COLORADO SPRINGS & INTERURBAN LIGENCE. injuries to a - TUR-BURDEN OF DEFENDANT. Under general allegations of negligence, the application of the maxim res ipsa loquitur necessarily requires defendant to come forward with sufficient proof to overcome the presumption by showing a state of facts from which the jury would not be justified in inferring that any negligence of defendant's caused the accident from which the injury resulted; while, under burden would be discharged only when from all allegations of specific negligence, defendant's the evidence the jury would not be warranted in finding that the accident was due to the specific negligence alleged. 6. CARRIERS 316(8) - INJURY TO PASSENGERRES IPSA LOQUITUR - COMPLICATED MACHINERY. The fact that the machinery of a street car is complicated does not exclude the application of the doctrine of res ipsa loquitur to the case of a passenger injured when the controller of a car exploded and burst into flames, causing him to jump. 9. NEGLIGENCE 119(1)-DOCTRINE OF "RES IPSA LOQUITUR"-EVIDENTIAL CHARACTER. The doctrine of res ipsa loquitur does not In an action against a street railway for dispense with the necessity that plaintiff prove passenger through negligence, the fact of negligence, but is itself a mode of where plaintiff pleaded negligence both general-proving negligence, and therefore evidence, carly and specifically, he established a cause of rying the case to the jury, permitting it to inaction against the railway by proving either fer negligence, and to find on all the evidence general or specific negligence; the manner of whether plaintiff has sustained his burden of pleading not having been questioned by the proof. railway. 2. CARRIERS 315(4) INJURY TO PASSENGER-PLEADING NEGLIGENCE GENERALLYRELIANCE ON MAXIM RES IPSA LOQUITUR. Had plaintiff, passenger suing a street railway for injuries, in one count alleged negligence generally as the cause of his injury, he could have relied on the maxim of res ipsa loquitur to establish it. 10. CARRIERS 316(8) INJURY TO PASSENGER-RELIEF FROM LIABILITY. A street railway sued for injuries to its passenger was not under necessity to show the actual cause of the accident when the controller of its car exploded and burst into flames, causing the passenger to jump, but could escape liability by showing that the accident occurred through no fault of its own. 11. TRIAL 141-INSTRUCTIONS. Where plaintiff's evidence shows that the accident for which he sues was due to a cause beyond defendant's control, as the presence of vis major, the act of a stranger, or his own contributory negligence, the court should peremptorily instruct the jury to find for defendant or to nonsuit plaintiff. 12. TRIAL 141-MATTER OF LAW-DETERMINATION BY COURT. Where from the undisputed evidence only one conclusion is justified as to whether the accident was due to defendant's negligence, the question of negligence becomes a matter of law to be determined by the court. 13. CARRIERS 320(15)-INJURY TO PASPRESUMPTION OF NEGLIGENCE QUESTION FOr Jury. SENGER Where a passenger, without fault, is injured on the cars of a street railway by the latter's failure properly to discharge its functions, by any of the instrumentalities it is bound to supply, or as the result of failure in any respect in the means of transportation or the conduct of its servants in connection therewith, a presumption of negligence arises as against the carrier, and if, on the whole evidence, different minds might differ as to the negligence of the carrier, the question of liability is for the jury, properly instructed. En Banc. Error to District Court, El Paso County; W. S. Morris, Judge. Action by David Reese against the Colorado Springs & Interurban Railway Company, a corporation. To review a judgment for plaintiff, defendant brings error. Affirmed. Chinn & Strickler, of Colorado Springs, George W. Musser, of Denver, and J. Alfred Ritter, of Colorado Springs, for plaintiff in error. Orr, Robinett & Mason and L. W. Cunningham, all of Colorado Springs, for defendant in error. WHITE, C. J. Reeese, plaintiff below, recovered a judgment against the Colorado Springs & Interurban Railway Company, a corporation, in damages for personal injuries sustained by him through the alleged negligence of the defendant corporation. The defendant operates a street car system in Colorado City, and on the afternoon of June 19, 1914, plaintiff was a passenger on one of its cars when an explosion occurred in or about the controller, appliances, and apparatus in the front of the car, whereby the vestibule It is common knowledge that competent and and front part of the car became filled with experienced motormen, engineers, and drivers of smoke and flames. It is alleged that as a cars are negligent at times, and that the fact result thereof plaintiff was placed in a situaa motorman was going at full headway with his electric car does not show that there could tion of apparent and imminent peril, and, benot have been a sudden overfeeding of the con- lieving that his safety required him to imtroller by him. mediately leave the car, he, without further 15. CARRIERS 320(15)-INJURY TO PASSEN- deliberation, jumped therefrom, and sustainGER-COMPETENCY AND FREEDOM FROM NEG-ed the injuries of which complaint is made. QUESTION FOR 14. CARRIERS 295(1)-MATTER OF COMMON KNOWLEDGE-CONDUCT OF MOTORMAN. LIGENCE OF MOTORMAN -- A street railway motorman's competency and freedom from negligence could not be established either by himself or other witnesses called for that special purpose; what he did or did not do could be accepted in evidence, and the jury only was competent to find the truth therefrom in relation to the matter. 16. CARRIERS 346 (2)—INJURY TO PASSENGER-CONTRIBUTORY NEGLIGENCE - SUFFICIENCY OF EVIDENCE. In an action against a street railway for jury to a passenger when the explosion and bursting into flames of the car's controller frightened him and caused him to jump, evidence held sufficient to warrant the jury's conclusion that his conduct was not unreasonable. 17. TRIAL105(1)—ADMISSION OF EVIDENCE -DUTY TO OBJECT. The language in which the negligence of the defendant is charged is as follows, to wit: "Plaintiff alleges that he sustained said injuries solely by reason of the negligence and carelessness of defendant and its employés having the management and control of said car at said time; that plaintiff is unable, for lack of knowledge, to definitely specify said negligence and carelessness, or to specify definitely the cause of said explosion; that plaintiff is inin-formed and believes, and upon such information and belief alleges, that defendant negligently and carelessly provided, operated, and caused to be operated said car at said time when the controller, machinery, appliances, and parts of said car connected with and used in the operation and control of the motive power thereof were out of repair and insecure and in a defective condition, and that by reason thereof said car was dangerous and unsafe for the transportation of plaintiff as a passenger at said time; that plaintiff is, for lack of knowledge, unable to specify more fully than as above stated the insecure, unsafe, dangerous, and defective condition of said car, its machinery, appliances, apparatus, and parts aforesaid. And plaintiff further alleges that, while said car and its controller, machinery, appliances, apparatus, and parts aforesaid were insecure and in said dangerous, unsafe, and defective condition, the employés of defendant operating said car so carelessly and negligently operated the same as that in consequence of the aforesaid defective condition of said controller, machinery, appliances, apparatus, and parts of said car, and the careless and negligent manner in which the same was operated by the employés of defendant at said time, there was an explosion of the controller or some other part of the apparatus of said car unknown to plaintiff, which caused I said car to become filled with smoke and flames; Counsel being officers of the court, charged with the duty to guard it against error, when they acquiesce in the admission of evidence, they cannot, after verdict, claim that it was improperly admitted to their client's prejudice. 18. EVIDENCE 471(19) - OPINION-LEGAL CONCLUSIONS. In an action against a street railway for injury to a passenger, testimony of the railway's day foreman that the lightning arrester on the car was in good condition after the accident, and had not been repaired in the meantime, involved legal conclusions only. AND 19. CARRIERS 320(13)-INJURY TO PASSEN- said car." that plaintiff is unable, for lack of knowledge | The presumption is simply a rule dispensing thereof, to more definitely allege the negligence with actual evidence in the first instance, and or carelessness of the said employés in operating applies where the circumstances, unexplained, point to negligence and would justify an inference thereof. Kansas Pacific Ry. Co. v. Miller, 2 Colo. 442, 457, 458. The complaint was not questioned. The defendant, however, denied negligence, pleaded contributory negligence, and that the explosion was caused by a bolt or flash of lightning at the time coming in contact with the controller box located in the front vestibule of the car, causing the mechanism thereof to catch fire. By replication the plaintiff denied the material allegations of the answer, and alleged that the car was not equipped with sufficient and proper applianc [5] Therefore under general allegations of negligence the application of the maxim would necessarily require a defendant to come forward with sufficient proof to overcome the presumption by showing a state of facts from which the jury would not be justified in inferring that any negligence of the defendant caused the accident from which the injury resulted; while under allegations of specific negligence only the burden of defendant would be discharged when from all the evidence the jury would not be warranted in finding that the accident causing the injury was due to the specific negligence al103 Pac. 819, 132 Am. St. Rep. 1121; Dearden leged. Kluska v. Yeomans, 54 Wash. 485, V. San Pedro, L. A. & S. L. R. Co., 33 Utah, 147, 93 Pac. 271. es for the purpose of arresting lightning, and if the car was struck by lightning, it was by reason of the negligence of the defendant. At the close of the evidence defendant moved for an instructed verdict, which was refused, and this action of the court is presented as the first ground for reversal. The claim is that plaintiff did not prove the specific negligence alleged, and that a prima facie case for plaintiff may not arise under the The allegations of general and specific negdoctrine of res ipsa loquitur. The basis of this contention is threefold: First, that hav-ligence were in no wise inconsistent, and ing alleged a case of specific negligence, plain- proof of the specific negligence alleged would tiff thereby abandoned the right to the pre- in no sense be adverse to the presumption sumption arising from the rule by voluntarily arising from the facts of the accident, but taking upon himself the burden of proving the particular negligence charged; second, that the maxim may not be applied to a case growing out of the use of complicated machinery such as that here involved; and, third, that the evidence was insufficient to carry the case to the jury. entirely consistent therewith. [6] The contention of plaintiff in error that involved excludes the application of the docthe complicated character of the machinery trine of res ipsa loquitur does not meet our plaintiff, the injured party, was the servant mechanism in which the explosion causing of the defendant and in actual control of the situation arises where, as here, the injured the injury occurred. An entirely different party was a passenger upon the car of a common carrier, and such injury was occasioned by an explosion of unusual severity and character in machinery wholly within the control of the carrier. The following cases are directly in point: Chicago Union T. Co. v. Newmiller, 116 Ill. App. 625, affirmed in 215 Ill. 383, 74 N. E. 410; Firebaugh v. Seattle E. Co., 40 Wash. 658, 82 Pac. 995, 2 L. R. A. (N. S.) 836, 111 Am. St. Rep. 990. approval. The case of Beebe v. St. Louis Transit Co., 206 Mo. 419, 103 S. W. 1019, 12 [1-4] We think plaintiff has pleaded neg-contention, is not in point. In that case the L. R. A. (N. S.) 760, cited in support of the ligence both generally and specifically, and, if he has proved either, has established a cause of action against defendant. The cause of action was the injury sustained by plaintiff through the negligence of defendant and whether the former charged such negligence specifically, generally, or both, is immaterial when, as here, the manner of pleading was not questioned by defendant. Had plaintiff in one count alleged negligence generally as the cause of his injury it is clear that he could rely upon the maxim to establish it. It is equally certain that, had he, in a different count, set forth his cause of action by allegations of specific negligence, he could rely upon any pertinent evidence to establish the same. Colorado & Southern Railway Co. v. Jenkins, 25 Colo. App. 348, 138 Pac. 437. The legal presumption, when applicable, is conditioned on the absence of other evidence of negligence, not on the absence of averments of negligence in the complaint, and a party may rely upon it, even though his pleading states the facts of the negligence of which complaint is made, if such facts are the ones which the legal inference of negligence tends to establish. Walters, by Guardian Ad Litem, v. Seattle R. & S. Ry. Co., 48 Wash. 233, 93 Pac. 419, 24 L. R. A. (N. S.) 788, and cases [7, 8] In the instant case there was a contract relation between the parties, with the resulting duty of the carrier to exercise the highest degree of practicable care and skill to transport the plaintiff safely. The rule requiring such degree of care would be of little value if it were not enforced in judicial administration by a correlative rule of evidence. The application of the latter rule to a given case is simply a matter of common sense. It may, and usually does, apply where an unusual or unexpected accident happens management or control of a defendant. Under such circumstances the accident speaks for itself, and creates a presumption of defendant's negligence. It is not alone the injury, however, but the manner and circumstances thereof, that give rise to the presumption. In such cases the res includes the attending circumstances, and the application of the rule of res ipsa loquitur involves principally the question and sufficiency of circumstantial evidence to justify the jury in inferring the existence of the principal fact at issue the defendant's negligence. [9] The doctrine does not dispense with the necessity that the plaintiff prove the fact of negligence, but is itself a mode of proving negligence, and is therefore evidence. Lyles v. Brannon Car Co., 140 N. C. 25, 52 S. E. 233. It simply carries the case to the jury permitting it to infer negligence and find on all the evidence whether plaintiff has sustained the burden of proof. Ross v. Cotton Mills, When "The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that accident was in fact the result of causes beyond the defendant's responsibility, or of the act of God, it is still none the less true that the plainhe proves the occurrence of the accident, the tiff has made out his prima facie case. defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances." [11, 12] Of course, a case may arise where the court should peremptorily instruct the the plaintiff, and if it did not do so it jury to find for the defendant or to nonsuit would be error. Such would be true where the plaintiff's own evidence shows that the 140 N. C. 115, 52 S. E. 121, 1 L. R. A. (N. S.) control of the defendant, as the presence of accident was due to a cause beyond the 298. In the case at bar there can be no ques-vis major or the act of a stranger or his tion that the physical facts surrounding the accident were such as to create a reasonable own contributory negligence. It would be probability that the accident was the result equally true where from the undisputed eviof defendant's negligence. When plaintiff showed the physical act of an explosion in the controller and the relation of defendant to that instrument, the conclusion that negligence superinduced that accident followed as a legitimate deduction of fact, and the plaintiff, notwithstanding defendant's attempted exculpation, was not under the necessity of showing the particular negligence that produced the explosion in order to carry the case to the jury. As said in Cook v. Newhall, 213 Mass. 392, 395, 101 N. E. 72, 73: "The whole body of the evidence may be such that no particular negligence can be found, and yet the accident may indicate some negligence, the details of which cannot be ascertained." dence of the entire case but one conclusion would be justified. The question of negligence would then become a matter of law to be determined by the court, and such is the case of D. & R. G. R. R. Co. v. Andrews, 11 Colo. App. 204, 53 Pac. 518, and Pullman, etc., Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578. In the former case the undisaccident was vis major, to wit, a snowslide puted evidence showed that the cause of the in territory where snowslides had not occurred before; and in the latter case an overcoat was lost in a Pullman car occupied at the time by several passengers and in charge of a porter, and it was held that the simple fact of the disappearance of the overcoat did not render the company liable. In that case the facts of the loss of the overcoatthe passengers on the train having access thereto as well as the servant of the defendant-were not of such an unusual nature as to justify the inference that such loss was due to negligence on the part of the master. Clearly neither of these cases are applicable to the facts of this case. Other cases relied upon in support of the contention that the case should not have been submitted to the jury are equally irrelevant. In fact, Omaha Street Ry. Co. v. Boesen, 74 Neb. To the same effect is Sullivan v. Rowe et 764, 105 N. W. 303, 4 L. R. A. (N. S.) 122, al., 194 Mass. 500, 80 N. E. 459. while stating that: And in Cassady v. Old Colony St. Ry. Co., 184 Mass. 156, 163, 68 N. E. 10, 12 (63 L. R. A. 285) it is said: If at the close of the evidence the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon a presumption, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it." [10] No one claims that the defendant was under the necessity of showing the actual cause of the accident. It could escape liability by showing that through no fault of it did the accident occur. The true rule is tersely stated in Gleeson v. Virginia M. R. R. Co., 140 U. S. 435, at page 444, 11 Sup. Ct. 859, 862 (35 L. Ed. 458), where Mr. Justice Lamar, speaking for that high court, "When the proof of such accident (where the doctrine of res ipsa loquitur applies) is met by proof of other facts and circumstances making it equally probable that it was the result of causes wholly beyond the control of the defendant, and which no human skill and foresight could have guarded against or prevented, one probability offsets the other, and the affirmative of the issue, in the absence of other evidence tending to establish it, stands, just as it stood at the beginning of the controversy, |