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1846, and which, with some amendment, has | benefit of parents for the death of a child, been in force in England ever since. This it is material to show whether the decedent act does not provide for a survival of the was a minor or adult. If a minor, the cause of action arising to the decedent in question whether his services during the rehis lifetime because of the injury which re- maining years of his minority would have sulted in his death. It creates a new cause been pecuniarily valuable to his parents may of action, not in favor of the estate of the be inquired into as affecting the measure of deceased, but in favor of certain specified damage. If the decedent was adult, then classes of beneficiaries. The cause of action this question is eliminated. There remains, is based, not upon the injury to the de- however, the somewhat narrow ground of ceased, but upon the fact of his death by "prospective gifts" either of money, propwrongful act of the defendant. The extent erty, or services which the parents could of damage in each case is to be measured by have reasonably expected to receive in the the pecuniary loss sustained by the particu- course of their lives from the decedent. Unlar beneficiaries rather than by the loss to der this act, pecuniary loss only can be conthe estate of the decedent as such. Similar sidered. Compensation cannot be had for statutes have been enacted in 35 or 40 states suffering or bereavement. It has been held of the Union, and have been in force in some that a presumption of nominal damages will of them for many years. Iowa, however, is obtain in favor of the parents. Atchison not one of such states. Our statute is a R. R. Co. v. Weber, 33 Kan. 543, 6 Pac. 877, survival statute. That is to say, the cause 52 Am. Rep. 543, and cases cited therein. But of action which arose to the deceased in his there is no presumption in favor of sublifetime because of the injury is made to stantial pecuniary loss to parents or dependsurvive after his death to his administrator. ent relatives, except such inference or preThe extent of damage is measured by the sumption as may naturally arise out of eviloss to his estate as such, although exemp- dence tending to show such loss. tion of the proceeds for the benefit of the family is provided. The measure of damage is not controlled or varied by the identity or circumstance of the particular person or persons to whom the benefit inures. It will be noted that the federal act under consideration provides for three classes of beneficiaries in the alternative; preference being given in the order named. The existence of the first class excludes the others; the existence of the second excludes the third. If there be no representative of any of the three classes, then there is no cause of action.

[2] Manifestly, also, the measure of damage in favor of the first class will be essentially different from that in favor of the second and third classes, and that in favor of the second class may be different from that in favor of the third.

Apparent exceptions to this rule are found in New York and Illinois. But the decisions in those states are based upon the particular form of their statutes. Each statute provides that the jury may give “such damages as they shall deem a fair and just compensation." Under each statute, also, the beneficiaries are confined to surviving husband or wife and next of kin, and the damages recovered are distributed in accordance with the statutes of descent.

[6] Generally speaking, in all other jurisdictions the measure of such loss is held to be the present worth of such gifts as the parents could reasonably have expected to receive from their adult child in the course of their lives. The trial court instructed in substance to this effect. The difficulty with this record is not in the instructions nor in the rulings of the court on the admission of evidence, but in the final state of the evidence, and perhaps in the state of the plaintiff's pleadings. In our foregoing analysis of the Liability Act in question, reference is had to the original act of April 22, 1908, alone. The amendment of April 5, 1910, is excluded from consideration, because the alleged cause of action involved herein accrued prior to its adoption.

[3] In those states, where similar statutes have been in force, it has been quite uniformly held that substantial damages will be presumed in favor of the widow and children without special averment or proof other than a showing of the pecuniary value of the life of the decedent to his family; and doubtless to his own estate, on the theory that a prospective inheritance of such estate by the family would ordinarily be a reasonable expectation. It has also been [7, 8] This question of loss of prospective quite usually held that as to other classes of gifts to the parents will ordinarily involve beneficiaries it is necessary to aver and an inquiry into the means and earning prove their pecuniary loss by appropriate al- capacity of the decedent on the one hand, legation and evidence. If the action be and the means and earning capacity of the brought on behalf of the parents, it is not parents on the other. The extent of previous enough to show their mere survival. Pecuni- contributions for support would clearly be ary loss must be shown. From the nature of a proper consideration. It is not legally the case the evidence must often be circum- necessary to show that the parents were destantial only and perhaps indefinite, but the pendent upon the deceased child as in cases aim of the statute to that end is definite and of "dependent next of kin." But such fact persistent. would undoubtedly be admissible in behalf [4, 5] Where recovery is claimed for the of the parents if it were shown that such

dependence was recognized by the deceased | facts tending to show the extent of pecuniin the form of contributions. In the nature of the case, evidence cannot be very definite as to the actual amount of the pecuniary loss sustained in such a case, but it does devolve upon the plaintiff to show those general facts which are necessarily within the general knowledge of the beneficiaries and which bear upon the financial resources and prospects of themselves, as well as those of the decedent.

[9] Turning to the petition in the case before us, there was an averment that the decedent left surviving him his father and mother. There was no direct averment that such survivors had sustained any pecuniary loss by his death nor any direct averment that the action was brought in their behalf. Taking the petition as a whole, however, the fair inference perhaps ought to be indulged that such was the apparent intention of the pleader. We would be slow to reverse on this ground, especially in view of the fact that the petition was not assailed.

[10] Turning to the evidence, the question of the amount of the pecuniary loss sustained by these parents seems to have been either overlooked or left to mere presumption. The surviving father testified as a witness, but did not touch upon this subject at all. The mother, testifying, touched the subject as follows: "Roy was not the oldest in the family. I have a married daughter. I have one other boy. My husband is a common laborer. My son contributed to the family expenses when he was working." Crossexamination: "We have been living in Iowa Falls about four years. My husband used to

work for the Rock Island Road. He ceased

to work for the Rock Island about five years ago. About three years before Roy's death. He was formerly a conductor. I lived in Minnesota while he was conductor. Q. You had been living at Iowa Falls about two years at the time of Roy's death? A. Yes, sir. Q. He had been working for the Rock Island all those two years? A. The boy, I understand you? Q. Yes, the boy Roy? A. Yes, sir. He was working on that division between Estherville and Cedar Rapids, and made his home with me and my husband. He boarded and roomed there when he was there and paid me for his board and room. Q. And in that way contributed to the family? A. Yes, sir; and in other ways, too." This is the entire testimony in the record on that question. It fails to furnish any sufficient data upon which the jury could properly award a verdict of $5,000.

[11] Some fair guide ought to be furnished to the jury for the exercise of their judgment. They should not be permitted to render a finding solely upon the earning capacity of the decedent nor upon the amount of damage accruing to him or to his estate; nor should they be required or permitted to make

A

ary loss. The Supreme Court of Minnesota states the rule as follows: "The proper estimate can usually be arrived at with approximate accuracy by taking into account the calling of the deceased, and the income derived therefrom; his health, age, talents, habits of industry; his success in life in the past, as well as the amount of aid in money or services which he was accustomed to furnish the next of kin; and, if the verdict is greatly in excess of the sum thus arrived at, the court will set it aside or cut it down." Hutchins v. St. Paul Railway Co., 44 Minn. 5, 46 N. W. 79. In the foregoing case the contributions of the son were $50 a year to his mother, whose expectancy of life was seven and one-half years. verdict of $3,500 was reduced to $2,000. In Little Rock Railway Co. v. Voss (Ark.) 18 S. W. 172, the decedent earned from $100 to $150 a month, and contributed to the support of his mother and invalid sister from $30 to $50 a month and from $5 to $20 additional when necessary to his sister. A verdict of $6,500 was sustained. In Fordyce v. McCants, 51 Ark. 509, 11 S. W. 694, 4 L. R. A. 296, 14 Am. St. Rep. 69, the decedent had been contributing all his wages except $125 a year to his parents, who were poor and dependent. A verdict of $2,391 was sustained. In O'Callaghan v. Bode, 84 Cal. 489, 24 Pac. 269, the decedent was 23 years old, and had been the sole support of his mother to such support $40 to $50 per month. and her minor children, and had contributed verdict of $3,000 was sustained.

A

Verdicts

In

of $2,000, $1,500, $3,750, $4,200, $3,550, and $2,500 were sustained in the following cases non, 43 Ill. 338; City of Salem v. Harvey, respectively: Chicago Railway Co. v. Shan129 Ill. 344, 21 N. E. 1076; MacVeigh v. 129 N. W. 852; Smith v. Coon, 89 Neb. 776, Minneapolis Railway Co., 113 Minn. 450, 132 N. W. 535; Texas Ry. v. Lester, 75 Tex. 56, 12 S. W. 955; Missouri Ry. Co. v. Henry, 75 Tex. 220, 12 S. W. 828; Leque v. Madison Gas Co., 133 Wis. 946, 113 N. W. 946. The following verdicts were held excessive: Chicago Ry. v. Vester, 47 Ind. App. 141, 93 N. E. 1039, $4,000; in McKay v. New England Co., 92 Me. 454, 43 Atl. 29, $2,000, reduced to $750; in Paulmier v. Erie Ry. Co., 34 N. J. Law, 151, $3,000; in Hackett v. Wisconsin Central Ry. Co., 141 Wis. 464, 124 N. W. 1018, verdict of $4,500, reduced to $2,000; Hirschkovitz v. Pennsylvania Ry. Co. (C. C.) 138 Fed. 438, verdict of $3,500, reduced to $2,500. The cases on this subject are fully collated by Tiffany in his volume "Death by Wrongful Act" (2d Ed.), under sections 153 to 180. The following quotation from sections 167 and 168 of this work is a fair résumé of the state of the authorities on the question here considered. We insert in parenthesis in the quotations the marginal citations upon which the text is based:

are recoverable for the loss of prospective | Wkly. R. 473), on the contrary, where the gifts are commonly actions by parents for deceased was a bricklayer and received from the death of adult children, although cases also arise in which such damages may be recovered for the benefit of adult children on account of the death of a parent, or for the benefit of brothers and sisters and other collateral relatives. As has been said, such damages are not confined to cases of these descriptions, but may be recovered, where the facts furnish a proper basis, in addition to damages for loss of services, support, etc., in actions for the benefit of husbands, wives, minor children (Pym v. Great Northern Ry. Co., 2 B. & S. 759, 4 R. & S. 396), and in some jurisdictions at least of parents of minor children. In order to lay a foundation for the recovery of damages for the loss of prospective gifts, it is usually held necessary, except in New York, for the plaintiff to show that the deceased during his life gave assistance to the beneficiaries by way of money, services, or other material benefits, which in reasonable probability would have continued but for the death. (Cases cited in notes to sections 168-170.) In Illinois, however, the rule is established that, where the next of kin sustain a lineal relation to the deceased, the law presumes some substantial damages from the relationship alone, and it is not essential to show that they received pecuniary assistance from the deceased (Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, 86 N. E. 712; Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330, 51 N. E. 701; Cleveland, C., C. & St. L. Ry. Co. v. Dukeman, 130 Ill. App. 105), although it is, of course, competent to show that such assistance was given (Prendergast v. Chicago City Ry. Co., 114 Ill. App. 156; Nordhaus v. Vandalia R. Co., 147 Ill. App. 274).

his father the wages of a skilled workman, and was of great assistance to his father, who was also a bricklayer, and who, owing to the loss of assistance from the deceased, could not take the contracts which he had done during his son's life, it was held that inasmuch as the benefit which the father derived accrued, not from the relationship, but from a contract, and there was no evidence that he paid his son less than the usual wages, he had suffered no pecuniary loss from the death (Demarest v. Little, 47 N. J. Law, 28). The distinction taken in English cases has generally been observed in the United States (St. Louis, M. & S. E. R. Co. v. Garner, 76 Ark. 555, 89 S. W. 550; Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 73 Pac. 163; Colorado Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251; Louisville, N. A. & C. Ry. Co. v. Wright, 134 Ind. 509, 34 N. E. 314; Diebold v. Sharp, 19 Ind. App. 474, 49 N. E. 837; Pittsburg Vitrified Pav. & Brick Co. v. Fisher, 79 Kan. 576, 100 Pac. 507; McKay v. New England Dredging Co., 92 Me. 454, 43 Atl. 29; Greenwood v. King, 82 Neb. 17, 116 N. W. 1128; Holmes v. Pennsylvania R. Co., 220 Pa. 189, 69 Atl. 597, 123 Am. St. Rep. 685; Texas Portland Cement & Lime Co. v. Lee, 36 Tex. Civ. App. 482, 82 S. W. 306; Brush Electric Light & Power Co. v. Lefevre [Tex. Civ. App.] 55 S. W. 396; Gulf, C. & S. F. R. Co. v. Brown, 33 Tex. Civ. App. 269, 76 S. W. 794; St. Louis Southwestern Ry. Co. of Texas v. Huey [Tex. Civ. App.] 130 S. W. 1017; Fritz v. Western Union Tel. Co., 25 Utah, 263, 71 Pac. 209; Southern Pac. Co. v. Lafferty, 57 Fed. 536, 6 O. C. A. 474); that is, the plaintiff must show that the decedent gave assistance Section 168. Thus in Dalton v. South East- to the parent or that the parent had reaern Ry. Co. (4 C. B. [N. S.] 296, 4 Jur. sonable expectation of pecuniary benefit from [N. S.] 711, 27 L. J. C. P. 227), where it the continued life of the child. The proper appeared that the plaintiff's son, who was measure of damage is the present worth of 27 years old and unmarried, and lived away the amount which it is reasonably probable from his parents, had in the last seven the deceased would have contributed to the or eight years been in the habit of mak-support of the parent during the latter's exing them occasional presents of provisions pectancy of life, in proportion to the amount and money, amounting to about £20 a year, he was contributing at the time of his death, it was held that the jury were warrant- not exceeding his expectancy of life (Riched in inferring that the father had such mond v. Chicago & W. M. Ry. Co., supra, 87 a reasonable expectation of pecuniary bene Mich. 374, 49 N. W. 621), though it would fit from his son's life as to entitle him to seem that the rule is not to be applied with recover damages. And in Franklin v. South mathematical strictness, and that the jury Eastern Ry. Co. (3 Hurl. & N. 211, 4 Jur. may properly take into consideration the in[N. S.] 565) it appeared that the father was creasing wants of the parent and the increasold and infirm, and that the son, who was ing ability of the child to supply them (Interyoung and earning good wages, assisted him national & G. N. R. Co. v. Kindred, 57 Tex. in some work, for which he was paid 3s. 6d. 491; Texas & P. Ry. Co. v. Lester, 75 Tex. a week; and, the jury having found that 56, 12 S. W. 955). In some cases, indeed, the the father had a reasonable expectation of evidence has been held sufficient to sustain benefit from the continuance of the son's a finding that there was a reasonable expeclife it was held that that action was main- tation of pecuniary benefit, although the evitainable, although the verdict of £75 was ex- dence fell short of showing that assistance cessive. In Sykes v. North Eastern Ry. Co. was actually furnished (Hopper v. Denver (44 L. J. C. P. 191, 32 L. T. [N. S.] 199, 23 | & R. G. R. Co., 155 Fed. 273, 84 C. C. A. 21;

Sieber v. Great Northern Ry. Co., 76 Minn. | tial accord with the foregoing are as follows: 269, 79 N. W. 95)."

He

Railway v. Duke (C. C. A.) 192 Fed. 306;
Cain v. Railway Co. (C. C.) 199 Fed. 211;
Youngquist v. Street Railway Co., 102 Minn.
501, 114 N. W. 259; Colorado Co. v. Lamb, 6
Colo. App. 255, 40 Pac. 251; Gonzales v.
Railway Co. (Tex. Civ. App.) 107 S. W. 897;

N. W. 321; Haug v. Great Northern Ry. Co., 8 N. D. 23, 77 N. W. 97, 42 L. R. A. 644, 73 Am. St. Rep. 727; Chicago, Ill., v. Scholten, 75 Ill. 468; C., B. & Q. Ry. Co. v. Van Buskirk, 58 Neb. 252, 78 N. W. 514; C., B. & Q. Ry. Co. v. Bond, 58 Neb. 385, 78 N. W. 710; Topping v. Town St. Lawrence, 86 Wis. 526, 57 N. W. 365; Winnt v. Railway Co., 74 Tex. 32, 11 S. W. 907, 5 L. R. A. 172; Railway v. Ryan, 62 Kan. 682, 64 Pac. 603; Coal Co. v. Limb, 47 Kan. 469, 28 Pac. 181. See, also, Hale on Damages (2d Ed.) §§ 140-142.

In the case before us the most that can be said for the evidence is that it showed the mere fact that contributions had been made to the parents by the decedent to some amount in his lifetime. There is not the slightest disclosure as to the extent of such

Without any disclosure on

[12] The question here involved has received recent consideration by the federal Circuit Court of Appeal for this circuit in the case of Garrett v. L. & N. Ry. Co., 197 Fed. 715, 117 C. C. A. 109. The following quotation from such opinion will serve to indicate | Van Brunt v. Railway Co., 78 Mich. 530, 44 the view of that court on such question: "As to the necessity for amendment, it is to be observed, as set out in the statement, that plaintiff simply sues for the benefit of decedent's parents in the first and second counts, and as administrator in the third count. does not allege anywhere in the declaration that the parents of the deceased suffered any pecuniary loss or injury through his death. The theory seems to have been that it was necessary to state only facts sufficient (1) to give the court jurisdiction; (2) to show the employment of the deceased and the negligence resulting in his death; (3) the names of the particular beneficiaries for whose benefit the suit is brought, and also the amount of damages sued for. It may be conceded for present purposes that if a widow and children had survived, and the action were main-contributions. tained for their benefit, the law would presume substantial damages, and so dispense with the necessity of specific averment in that behalf. Dukeman v. C., C., C. & St. L. R. Co., 237 Ill. 109, 86 N. E. 712. In some jurisdictions even the relationship or connection of the beneficiaries is not deemed important in this respect. Pennsylvania Co. v. Coyer, Adm'r, 163 Ind. 631, 72 N. E. 875; Knife & Shear Co. v. Hathaway, 17 O. C. D. 750, 751, and cases there cited. But the decedent in this case was 24 years of age and unmarried at the time of his death, and we are convinced that the better practice is, at least as to such beneficiaries as are involved here, to require the nature of the damages claimed to have been suffered in consequence of the death to be averred. This results from the conclusion that the action which accrued to the deceased prior to his death did not survive. We have already pointed out that the third class, the 'next of kin', provided for in the act, is specifically limited to such as were 'dependent upon such employé.' This provision at once furnishes the token for identifying the beneficiaries and prescribes the condition of recovery. Is it to be said that such identification and condition need not be averred? Since it is not uncommon experience that a son past legal majority, as well as a minor son, may be an expense to his parents, it is more consonant with the reason disclosed by the act in respect of next of kin to hold that averment of pecuniary loss or injury is likewise necessary in regard to parents, although dependence, in the sense in which the term is used in the statute with reference to next of kin, is not essential to a recovery for the

that question, how could a jury form any judgment as to the amount which might have been reasonably expected in the future? If this evidence could be deemed sufficient to sustain a verdict for $5,000, then it were better for the plaintiff to omit pertinent testimony than to produce it. It is true that no hard or fast rule can be laid down for the measurement of damages. When all is shown that can be shown on behalf of the beneficiaries, much will necessarily be left to fair inference and estimate. There is no escape from the conclusion, however, that the verdict in this case was purely arbitrary as to amount. Resting solely upon the evidence which we have quoted herein, it was clearly excessive and the motion for a new trial ought to have been sustained on that ground.

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As an addendum to the foregoing division of the opinion, we desire to say that since it was written publication has occurred of the opinions of the United States Supreme Court in Mich. Centr. Ry. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. American R. Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. -; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. These cases support our construction of the act in question.

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[13] 2. The defendant challenges the jurisdiction of the District Court and of this court because the cause of action sued on is founded upon a federal statute. We had occasion to consider the question here presented in Bradbury v. C., R. I. & P. Ry. Co., 149 Iowa, 51, 128 N. W. 1, 40 L. R. A. (N. S.) 684. The defendant challenges the correctness of our holding in that case, and asks

held that the implications of the congression- | tion. There was direct evidence of an inal act in question permitted a concurrent ju- spection of the engine on the day of the acrisdiction to the state courts for its enforcement within their respective states. Since that time (April 5, 1910) Congress has enacted an amendment to the original act whereby it has in express terms recognized such concurrent jurisdiction in the state courts. If anything more were needed to remove the question beyond the realm of debate, it has been furnished by the holding of the Supreme Court of the United States in Mondou v. N. Y. & N. H. Ry. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.

[14] 3. It is strenuously urged by appellant that there was no evidence to sustain the charge of negligence. The evidence did show that the engine in question was old and out of repair; that its wheels were badly worn; the bushings and bearings were worn; and that the engine rattled and pounded while it worked. The immediate cause of the breaking of the side bar was not ascertained. There was evidence tend

ing to show that some other part must have broken first. The general theory of negligence charged in the petition was that the worn and dilapidated condition of the engine was such as to produce an unusual strain upon the side bar, and this was the theory upon which the case was submitted to the jury. We think the evidence was such that the question of negligence was fairly one for the jury.

cident. Whether the inspection was adequate was a question which inhered deeply in the actual condition of the engine as described by the various witnesses. Theoretically there is a distinction between a failure to inspect and a failure to repair after inspection and discovery. But such distinction is frequently not capable of practical application. If this engine was in the dilapidated condition described by the witnesses for the plaintiff, then the duty of adequate inspection, discovery, and repair would be practically identical. We think, therefore, that there was no prejudicial error in the instructions at this point.

Other minor errors are specified, but they are of a nature not likely to arise again, and we pass them without further consideration. For the reason indicated in the first divi

sion hereof, the judgment below must be reversed, and the case remanded for a new trial.

Reversed and remanded.

WEAVER, J., taking no part.

In re MARTIN'S WILL.

(Supreme Court of Iowa. June 7, 1913.) 1. WILLS (§ 55*)-TESTAMENTARY CAPACITY— EVIDENCE.

Evidence in a will contest held to warrant a finding of soundness of mind of testator. [Ed. Note.-For other cases, see Wills, Cent.

[15] 4. Some complaint is directed toward Dig. §§ 137-158, 161; Dec. Dig. § 55.*]

the instructions. It is said that the instructions assumed that there was evidence to the effect that the engine wheels were "flattened," and that under the instruction the jury was permitted to find such fact. It is urged that there was no evidence to support such assumption. The petition did charge that the wheels were flat. The trial court followed somewhat the allegation of the petition in stating the details of negligence contended for, and this particular alleged condition was referred to in the instruction. The evidence did show that the wheel and rims were "badly worn," and that they had not been trimmed for more than a year and a half. There is no explanation in the record as to what is meant by a "flat" wheel. It appears to be conceded that it is a form of wear upon the rim or tire of the wheel. The term is doubtless capable of a more exact definition, and this form of wear may have its own peculiar characteristics, but it does not so appear from the record before us.

2. WILLS (8324*)-UNDUE INFLUENCE-Evi

DENCE.

That testatrix's counsel and business adviser, called in by her to advise her as to objects most worthy to be remembered, she deand charitable purposes, suggested the local Y. siring to give the bulk of her estate to religious M. C. A., in which he took interest, and had its organization perfected, to enable it to take jury on the question of undue influence, though a bequest, is not sufficient evidence to go to the she make a large bequest to it.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 225, 767-770; Dec. Dig. § 324.*] 3. WILLS (§ 332*)—UNDUE INFLUENCE-SUGGESTIONS OF COUNSEL.

As qualified, an instruction in a will contest that, as legal adviser of testatrix, counsel, called in by her to so assist her, had the right and it was his duty to assist her in arranging the disposition of her property, and to make such suggestions as would assist her in determining what disposition she wished thereof.. "leaving to her, however, the right to decide what disposition she would make," is correct. [Ed. Note.-For other cases, see Wills, Cent. Dig. 785; Dec. Dig. § 332.*] 4. WILLS (§ 329*) - INSTRUCTIONS

AND DUTIES OF JURORS.

- RIGHTS

An instruction in a will contest, to the effect that juries have no right to substitute their own judgment for that of testatrix, is

[16] Lack of inspection was included in the enumeration of the trial court of certain specifications of negligence. It is urged that there was no evidence of lack of inspection, and that on the contrary the affirmative evidence of inspection was undisputed. There was no direct evidence of a lack of inspec- 329.*]

proper.

[Ed. Note.-For other cases, see Wills, Cent Dig. §§ 774, 776-778, 786, 787; Dec. Dig. 1

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe

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